Category Archives: Fair Investigation

Choice of Decision Maker made Dismissal Unfair

inexperienced
Choice of an inexperienced manager to hear a disciplinary case may make decision unfair.

I referred to the case of Thomson v Imperial College Healthcare NHS Trust about a week ago in respect of disability related misconduct dismissals. The case has been more widely reported in respect of its unfair dismissal findings, however.

The ACAS Code of Practice on Disciplinary and Grievance Procedures, which is intended to provide “basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace” surprisingly has very little guidance on choice of decision makers.

To the extent that there is guidance it sets out that:

  • A different person should normally carry out an investigation and disciplinary hearing; and
  • A decision to dismiss should only be taken by a person with the authority to dismiss; and
  • An appeal manager should normally be a different person to the person who made the decision.

And that’s it!

In Thomson all these guidelines were complied with: The claimant, a senior Hospital official had an independent Dr sit on the disciplinary case who was specifically chosen because other local staff of the requisite authority to hear the case were involved in the case. The selection of the hearing manager was also made in line with the employer’s disciplinary policy, and an independent appeal manager was appointed. However, in Thomson the claimant alleged that the hearing manager, Dr Palazzo, was too inexperienced to hear the case (which was alleged to be a potential gross misconduct case and involved alleged disability discrimination) even though no complaints were made by the claimant before at the disciplinary hearing itself. At the first tier tribunal found, as a matter of fact, that “Dr Palazzo told us that he had never before chaired a disciplinary hearing.  Nor had he been trained in the conduct of disciplinary proceedings.”

In its judgement the Tribunal (ET) concluded “It is self-evident in our view that this employer did not act reasonably in giving the case to Dr Palazzo.  To do so was not fair to the decision-maker.  But more importantly, it denied the Claimant a fair hearing.  As a minimum, fairness entails, amongst other things, a decision by someone equipped with ability and experience commensurate with the demands of the case … It is no answer to say that Dr Palazzo was within the class of persons who were eligible to chair the disciplinary hearing under the Respondents’ written procedures.  Fairness does not depend on a ‘box-ticking’ approach to procedures.  An unfair process does not become reasonable simply because it does not conflict with a written procedure … and we hold that the defect here identified is sufficient to place this case outside the range of permissible action open to the Respondents and accordingly renders the dismissal unfair as a matter of process.”

In paragraph 40 of the EAT judgement the Tribunal’s reasoning was affirmed:

In our judgment the Employment Tribunal did not err in finding that the involvement of Dr Palazzo as chair of the disciplinary panel hearing the proceedings against the Claimant rendered the dismissal procedurally unfair. Although he was in the category of those qualified to chair such a panel it seems that there was no evidence that he had training or experience to carry out that duty.

The failure to include any guidance on who is an appropriate person to hear dismissal or grievance cases does I think highlight a major gap in the ACAS guidance that reflects real issues in workplace disciplinary matters. For example, twice in the last week I have had to make formal objections on the choice of decision makers in disciplinary matters for union members, despite the employer being a big employer well able to identify independent decision makers.

In this regard Thomson does strike me as a helpful case. Where the matter under consideration is a serious one that could result in a gross misconduct finding or discrimination complaints it may be advisable for reps to out the question of experience firmly on the agenda by asking a decision maker what training they have received and what experience they have on these matters with a view to potentially using this as a future ground of appeal.

In Thomson it is clear that this inexperience was not just a procedural matter (although the dismissal was found unfair on these grounds alone as well) but this inexperience was a key factor in the Dr Pallazzo dismissing for ‘gross misconduct’ when he himself accepted the alleged misconduct was not capable of amounting to gross misconduct under the Respondent’s disciplinary policy. This does raise the prospect that where the choice of decision maker is the ground of an unfair dismissal claim any victory will be a pyrrhic one as the Tribunal may come to the view that had a fair choice of decision maker been made the outcome (dismissal) would be the same and limit any compensation award.

References:

Thomson v Imperial College Healthcare NHS Trust [2015] UKEAT 0218_14_3001

Cross Examining Witnesses in Disciplinary Hearings

Although unlikely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.
Although likely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.

In an Employment Tribunal hearing the cross examination of witnesses represents the majority of a disciplinary hearing. By contrast in a misconduct hearing of an employee the overwhelming majority of hearings will feature no cross examination of witnesses at all.

As was set out in R (Bonhoeffer) v General Medical Council in certain circumstances the refusal to allow an employee the right to cross examine would represent a denial of an employee’s right to a fair trial and amount to a breach of the their Article 6 ECHR rights. In practice though this is unlikely to apply to most disciplinary hearings and only where the right to practice their profession rather than just current job is at risk.

The ACAS Code of Practice on Disciplinary and Grievance Procedures does not give an expectation that an employee must be allowed to call and cross examine an employee but it does go someway to suggesting that this may be appropriate. Paragraph 12 suggests that an employer:

The employee should be allowed to set out their case and answer any allegations that have been made.The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.

In my experience employees subject to misconduct proceedings do sometimes seize on the idea to cross examine an employee (usually an individual who who has made a grievance). I nearly always think this is a bad idea and thankfully have nearly always been successful in dissuading them. Many times the reason is simply some employees are incensed by what  has happening to them and the opportunity to vent some of that frustration seems an attractive one.

Other times the case against cross examination comes down to two issues. First, there is no independent verification and the allegation relies on one person’s word against another. In such cases I prefer to argue that in the circumstances (when an employee has a clean disciplinary record) and credibility has not been questioned in an investigation it is appropriate to give the benefit of the doubt following the advice in Salford Royal NHS Foundation Trust v Roldan (paragraph 73) that:

The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved.

Second, there are cases where the credibility of the opposing side can be impugned with documentary evidence – which may or may not have been considered in the disciplinary investigation. In such circumstances I do not see what benefit it would be for the employee to cross examine the witness – the smoking gun is already in their hands and cross examining would only risk the value of the evidence being lessened by the opportunity to be explained.

However, employee representatives will want to know that if a cross examination is requested and an employee is refused, especially where the accusations or consequences are serious, then this may itself represent a ground for unfair dismissal (see TDG Chemicals Ltd v Benton). If nothing else, if you’re confident a request will be refused then asking for the right may itself give an employee a ground of appeal they would not otherwise have (but you risk having the request granted and then having no questions to ask).

Case References:

R (Bonhoeffer v General Medical Council [2011] EWHC 1585 (Admin)

TDG Chemical Ltd v Benton [2010] UKEAT 0166_10_1009

Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

Unfair Dismissal and the Myth of Red Tape

Unfair Dismissal: A Plethora of Red Tape?
Unfair Dismissal: A Plethora of Red Tape?

The Lancashire Telegraph is running a story on the unfair dismissal ruling of a former employee of Moorlands School in Clitheroe, Lancashire.

Along with two other members of school staff of Moorlands School, a private boarding school in Lancashire, the claimant was supervising a school trip at which a number of pupils got drunk. Depending on the exact circumstances, which are not reported, it does appear that dismissal for the teacher’s conduct was not excessive.The fact that the Tribunal did not award any compensation for the unfair dismissal – a Polkey deduction – suggests the the Tribunal agreed.

Nevertheless, Moorlands School were found to have unfairly dismissed the claimant, Deanna Hall, by adopting an unfair disciplinary process. According to the report one of the main errors of the disciplinary process was the school failed to adequately disclose all the evidence upon which the employer sought to rely to the claimant before the hearing.

In responding the the judgement Jonathan Harrison, the schools headteacher, went on the offensive and claimed that the problem was really one of excessive red tape:

Judge Howard did find that Mrs Hall was unfairly dismissed due to a lack of evidence being presented to Mrs Hall during the investigatory hearing. This was due to a slight Acas infringement. As employer it is becoming impossible to fully comply with every procedural aspect of Acas.

I think the first thing to say is you do not get unfair dismissal judgements for “slight” errors, Jonathan Harrison is simply being duplicitous.

As most readers will be aware the central question before an Employment Tribunal in assessing whether a dismissal is fair is whether the decision is within the ‘band of reasonable responses’. In British Leyland UK Ltd v Swift [1981] IRLR 91 Lord Denning explained this approach.

If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have reasonably have dismissed him, then the dismissal was fair. It must be remembered that in these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.
 In short, a dismissal is not made unfair because an employer made a ‘slight mistake’, it is made unfair because it is a decision no reasonable employer could have made. Even if a Tribunal considered the decision of an employer to be wrong and in the same circumstances they would not have dismissed an employee the dismissal is still likely to be fair, like the example given by Lord Dennning above.
And the same principle applies to the disciplinary investigation. The Court of Appeal in Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 made clear that the band of reasonable responses test applies to a disciplinary investigation as well. In order to be a fair dismissal an employer must follow a fair process on the fundamental areas. One of these fundamental principles is making sure employees accused are offered the opportunity to see and respond to any evidence against them. This is a fundamental principle of natural justice that is best enunciated by the comment of Megarry J in John v Rees [1970] Ch 345 that

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”Those who take this view do not, I think, do themselves justice.

As every body who has anything with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Nor are those with any knowledge of human nature who pause to think for a moment, likely to underestimate the feelings of resentment of those who find that a decision against them has been made with their being afforded any opportunity to influence the course of events.

It is precisely this principle that Moorlands School denied Deanna Hall, it denied her the chance to offer a defense to the undisclosed evidence. That is no slight thing and it would have taken a mere matter of minutes to do.
The simple fact is that if Jonathan Harrison really thinks the relatively simple standards of procedural fairness set out in the ACAS Code of Practice are beyond him he has absolutely no business running a school – he is clearly not up to the job. If he can’t run a fair disciplinary process such as showing an accused the evidence he will rely on to allow an employee an opportunity to explain then it beggars belief how he can cope with the much  more demanding, onerous and technical duties being a headteacher requires. The more likely scenario however is that the school screwed up the disciplinary process and made significant, not slight, mistakes in how the school ran the disciplinary process for Ms Hall. And, rather than face up to those errors and the unnecessary expense that has caused for the school, Mr Harrison is trying to shift the blame to the so-called overwhelming burden of red tape. It is an old, old strategy but hopefully one the school’s staff, pupils, governors and parents will see through.

Brito-Babapulle, Mark II

Back in 2013 the EAT issued the the important decision in Brito-babapulle v Ealing Hospital NHS Trust [2013] UKEAT 0358_12_1406 which that found that the Employment Tribunal’s finding that “[o]nce gross misconduct is found, dismissal must always fall within the range of reasonable responses” was an error of law. Specifically, “the Tribunal misdirected itself as to whether it was simply sufficient to identify whether the conduct taken into consideration without regard to mitigation justified dismissal and by assuming, wrongly that to label conduct gross misconduct answered that question when it did not.”

However, the appeal in Brito-bapulle was on two points. In addition to the question of mitigation, which the EAT upheld there was also an appeal on whether a finding of fraud was open to the Respondent since the investigation had only alleged dishonesty. That appeal was lost and, on that ground, the claimant appealed to the Court of Appeal and judgement was delivered last month in Brito-Babapulle v Ealing Hospitals NHS Trust [2014] EWCA Civ 1626.

The Court of Appeal accepted it “is of course an elementary rule of natural justice and disciplinary proceedings that the individual concerned must know the case she has to meet” but, worryingly, did not seem to be concerned that a subsequent change of ‘label’ affected the case. Therefore, what was an alleged act of dishonesty had morphed in the dismissal letter to an act of fraud. Although not affirming the Respondent’s conduct it found a change of label to one which an employee had not been warned was being considered did not render a dismissal unfair.

That seems to be a regrettable finding – even if the basic narrative remains the same an allegation of dishonesty is one thing but an allegation of fraud – with its attendant implications of criminal conduct – seems another altogether. LJ Bean and fellow judges unfortunately found that such ambiguous terms and plain misrepresentation in what was a serious disciplinary process is ‘fair’.

Dismissal and Culpability

The central case dealing with the fairness of conduct dismissals is undoubtedly British Home Stores Ltd v Burchell [1978] UKEAT 108_78_2007. It was this case that is the source of the “Burchell Test”, here it is in the judgement itself:

What the tribunal has to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, … the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation in the matter as was reasonable in all the circumstances of the case

In short,

  • the employer must genuinely believe that the reason for the dismissal is the real reason (usually this means that there is a genuine belief that the employee did do the misconduct); and
  • the employer must have reasonable grounds for that belief; and
  • In order to reach the above two states of mind the employer must perform a reasonable investigation.

Although not making reference to Burchell a recent case, Burdett v Aviva Employment Services Ltd, asks whether an employee’s dismissal for a clear gross misconduct offence (e.g., violence at work or theft) when they admit that they did the alleged act is fair? Normally, this will be the case. If an employee admits doing an act that is an act of potential gross misconduct (e.g., punching a co-worker) then it will not be a surprise that most disciplinary processes will find that the alleged misconduct is proven! An investigation would nearly always be necessary but not usually an especially onerous one.

However, Burdett is a case I think has the potential to be of use to union reps, the EAT clearly affirmed that the finding by an employer that an employee has committed gross misconduct in these circumstances is not always fair (this is to be distinguished from the separate issue of whether dismissal for proven misconduct is fair).

An employer to meet the second bullet of the Burchell test above must not only be satisfied that an employee committed the act but that they had the intention to do so (or was negligent) – in other words, that they were culpable for the alleged misconduct. This reaffirms the instructions in Sandwell & West Birmingham Hospitals NHS Trust v. Westwood [2009] UKEAT 0032_09_1712 that Gross Misconduct “involves either deliberate wrongdoing or gross negligence”. In other words, to justify a finding of proven misconduct an employer must have reasonable grounds for believing the employee engaged in the misconduct but also that this misconduct wrongdoing was deliberate. In my experience it is a regular, albeit not frequent, suggestion that misconduct is not committed intentionally. A clear cut example would be a shopworker with Tourette’s syndrome who has a complex tic that results in her hitting out and, unintentionally, hitting a customer causing physical injury. There is no doubt that hitting a customer is gross misconduct but here, where if the defence of lack of intention is offered because of disability and there is evidence supporting this no reasonable employer could conclude that there was “deliberate wrongdoing”.

In Burdett the alleged misconduct was that in April 2011 the claimant sexually assaulted two female employees, threatened to assault a security guard who challenged the claimant’s conduct and, upon leaving the workplace, assaulted a member of the public. That the claimant did these acts was not disputed. However, Burdett suffered from a paranoid schizophrenic illness that was controlled by medicine. However, unfortunately he stopped taking that medicine. In his disciplinary process Burdett made clear that he did not dispute that he assaulted or threatened to assault his co-workers and a member of the public but submitted this was not intentional and a direct consequence of his disability (the claimant was in the immediate aftermath of the incident detained under the Mental Health Act).

In the disciplinary hearing the proven nature of the misconduct allegation was assumed, with the decision maker began the meeting with the following observations:

  • incidents such as those of 26 April 2011 would “normally result in dismissal for gross misconduct”
  • The decision maker’s role was now to determine the appropriate sanction”

In other word’s a proven case of misconduct was assumed. The Employment Tribunal found in favour of the Respondent as follows:

The ET found that the reason for the dismissal was gross misconduct. The Claimant had admitted the gross misconduct, as he had admitted the sexual assaults. He had also admitted a “serious error of judgment in discontinuing his medication without medical advice”. As the Claimant had “openly admitted his misconduct”, very little investigation had been called for; clearly the Respondent had reasonable grounds for its belief. Dismissal was within the range of reasonable responses available to the Respondent: “Quite clearly, any Respondent, given the nature of the misconduct, would have invoked a sanction of dismissal.” The ET thus found that the dismissal was “quite clearly fair”.

In doing so the EAT found the ET had erred

On the unusual facts of this case, the ET needed to do more than simply consider whether there were reasonable grounds for concluding that the Claimant had performed the act in question; it also had to ask whether there were reasonable grounds for concluding that he had done so wilfully or in a grossly negligent way.

This the ET failed to do and on that basis the EAT determined that the previous determination that the Respondent had fairly dismissed the claimant was unsafe.

What Burdett re-emphasises is that Gross misconduct must be conduct that is deliberate (or grossly negligent) and an employer must have a reasonable basis for belief (the second Burchell test requirement). Where there is an ostensible case that misconduct has taken place I think the lesson here is that reps should seek to ensure questions about culpability are raised during the investigation and disciplinary process so there can be no excuse for the employer failing to consider this. And, if they don’t, this may then be a ground of appeal.

Although I don’t think the relevance to of Burdett to the issue of culpability is limited to that of disability related alleged misconduct this is where the issue is, I think, most relevant. In my experience disability issues in disciplinary matters where they touch on culpability are frequently considered under a mitigation heading – this merely repeats the precise error the EAT criticised the ET and employer for in Burdett. That is not to say, per Sinclair v Wandsworth London Borough Council, that disability is a free pass on culpability grounds but Burdett does make clear that, at a minimum, there must be a reasonable examination of the issue [1].

[1] At paragraph 46 of Sinclair the EAT (referring to another EAT judgement) that “In short (see paragraphs 39 to 40 of the EAT judgment) the EAT found that the fact that the matters were said to have arisen as a result of the mental illness of the Claimant in that case was no excuse. With respect, we agree with that conclusion. It cannot be said that totally unacceptable conduct in an employment context (or in a criminal context) can be excused by reference to a background or underlying illness. The fact is that the employer has been faced with unacceptable conduct in the workplace.”