Category Archives: Misconduct

Human Rights - Article 6, Misconduct, Unfair Dismissal

Salmond, Natural Justice, and Unfair Employer Misconduct Investigations

If you are a trade union representative one of the go to arguments you will often employ is that the employer is acting contrary to natural justice. Natural Justice can be summarised as comprising of two components: 

  • That a person accused of wrongdoing will be told what exactly they are accused of, given the chance to provide a defence,  reasonable time to prepare, be provided access to the evidence against them before a decision on whether they are responsible for the misconduct is made.
  • That the investigation and misconduct will be taken by persons who are impartial and have not been previously involved in any investigations.

That, broadly stated, is all that natural justice requires.

Natural justice has recently hit the headlines in the context of Alex Salmond, the former SNP leader, and his Judicial Review against the Scottish Government.

A year ago, in the wake of the #metoo movement two sexual harassment complaints were made against Mr Salmond regarding his time in government. The government, quite properly, launched an investigation into the allegations. The Permanent Secretary Leslie Evans (head of the Civil Service for the Scottish Government) appointed an HR investigator to investigate the allegations. However that HR Officer had already had some involvement in the concerns and had spoken to the complainants about the matters some time earlier. 

The Court found this was a very serious procedural error, that amounted to a breach against Alex Salmond’s natural justice rights, specifically the right of accused to be subject to an impartial investigation without the appearance of bias. Instead, having been investigated by an party with previous knowledge and involvement of the matter at hand the court took the view that this was a fundamental error and, in so doing, the results of the investigation could not stand. In making the judgement the court did not find Alex Salmond had not engaged in sexual harassment but that any investigation that had been undertaken could not stand because of bias. 

The court, in my view were right to do so in recognition of the rule of law and the need for fair processes to be scrupulously applied to all. If there was a view that a quick investigation could resolve the matter then the Scottish Government made a serious error because, as the Guardian notes, this error has caused harm to the government’s reputation and should further complainants contemplate coming forward they may now be dissuaded from doing so. The judgement of the court recognises that its requirement to apply the rule of law would make it prejudicial to allow a procedural unfair investigations to stand and to dissuade the investigators from pursuing arbitrary investigations in the future. 

What then does this mean for employment investigations? One would think, that the Employment Tribunal would take a similar approach, especially given the centrality of rule of law considerations in the Supreme Court’s recent consideration of employment justice in R v Unison (the ET fees case); such a view is false, however. In fact, the court of Appeal have expressly stated that the principles of natural justice do not form a basis for an appeal that an employee was unfairly dismissed. In Slater v Leicestershire Health Authority [1989] IRLR 16 it was determined that: 

[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . . I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [Tribunal] consider the question raised in s[98(4)] of the Act.’

I think this is wrong. Why should the remedy in public law whereby a serious procedurally unfair investigation results in that investigation being quashed not have a similar counterpoint in employment law, for example that any dismissal reliant on an unjust investigation will be unfair. Similar public policy arguments would apply such that such a remedy would encourage employers to invest appropriate due diligence in misconduct investigations so as to prevent errors and also dissuade employers from pursuing arbitrary investigations for certain staff (it is a rare trade union victimisation case, for example, that will not involve an employer pursuing overblown or trumped up disciplinary accusations against them in order to rid themselves of a troublesome (aka effective) union rep).

Instead,  the employment law rather than adopting the rule of law approach seen above has required an additional requirement, as Slater itself set out in the excerpt above. Not only must there be a serious procedural breach of justice but the employment tribunal must consider whether this breach amounts or contributes to a separate breach of section 98(4)  Employment Rights Act 1996, namely that the conduct of the employer was outside the range of reasonable responses.

One obvious counter-argument is that the requirements of natural justice in an employment context are summarised in the ACAS Code of Practice on Disciplinary and Grievance Procedures  and a failure to follow these may give rise to a successful unfair dismissal claim. This is true, and many, if not most, serious procedural breaches of natural justice will be found to be unfair dismissals. This is not adequate in my view. First, unfair dismissal is only an option for a segment – and ever decreasing segment – of the UK workforce, being those who are employees and also those with two years continuous service. Second, there is no necessary correlation that breaches of natural justice will result in an unfair dismissal

The recent decision in Hargreaves v Manchester Grammar School is a case in point. A teacher was accused of misconduct, and the school investigated this and obtained numerous witness statements. Three of this gave evidence that persons present had witnessed nothing untoward but the employer did not disclose these the the teacher. The teacher was in due course dismissed.

Natural Justice would require that evidence against an alleged wrongdoer should be disclosed, but so should evidence that is potentially exculpatory. In Hargreaves the teacher understandably complained that the employer had kept evidence from him that could point his innocence from the accusation and that this was a serious breach of natural justice. However, despite the employer’s deliberate decision to exclude evidence from Mr Hargreaves, and thereby depriving him of the opportunity to make submissions to the decision maker on the basis of these statements the Employment Appeal Tribunal   affirmed the Employment Tribunal’s decision that because the decision was not outside the range of reasonable responses the employer’s investigation was fair.

And so we are left with the position that an employer has deprived an employee under suspicion of wrongdoing the opportunity to make focused submissions to the employer on how the evidence the employer had gathered pointed towards his innocence on the basis that the employer decided it would not assist the employee based on their understanding of the employee’s case. And, having done so, the employer can point to the EAT’s decision as vindication of the employer’s (mis)conduct.

It probably is true that had the employee had sight of the statements the outcome would have been the same but that is not the point. The issue is, like the decision in Alex Salmond’s case investigations should appear to be and appear to be impartial, they should not endorse an investigator’s decision to tie an accused employee’s hands and prevent the opportunity of presenting as effective a defence as possible. Unfortunately, unfair dismissal law in departing from rule of law approach does not do this and so offers inadequate incentive to employers  to be irreproachable in their conduct of investigations. If one were to ask Leslie Evans I doubt she would express the same view in respect to administrative law.

Misconduct

Resignations and Disciplinary Allegations

adult anger angry angry faceI have written before about ‘heat of the moment’ resignations. The recent decision in Walker Smith v Perrys Motor Sales offers a good opportunity to look at this again, although I do not plan to look at the actual decision in Walker Smith in any great detail

The general position in the employment contract is that a resignation cannot be withdrawn or retracted, unless all parties agree to this. Although it seems counterintuitive the real question is whether there was a resignation at all? Does the fact an employee says to their employer “I Quit” or writes that a letter saying “I Resign” mean that that is really what happened? To address situations where an employee makes a rash statement that they quit but then rethink their position employment law has recognised that this may not, properly speaking, be an effective resignation. And, where this happens and the employer nonetheless considers them still refuses to consider them employed then this response by the employer amounts to a decision to dismiss. The status of such a ‘heat of the moment’ non-resignation ‘resignation’ is explored in Martin v Yeomen Aggregates Ltd:

I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgement, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.

In short, employment law has recognised a kind of legal fiction – where a person unambiguously says they resign but this is in the heat of the moment and is promptly retracted this may actually mean there was no resignation at all, even if this is made without notice.

This brings us to the case of Walker Smith. The important facts in the case are that the claimant was a longstanding employee who on 4 June attended a disciplinary investigation meeting  and, after this, was invited to a disciplinary hearing on 8 June. In response to this decision Mr Walker Smith wrote resigning his employment but also confirming that he would work his notice period of 3 months.   It appears that Mr Walker Smith thought that, by resigning, the employer would not hold the disciplinary meeting, but that was not to be. The hearing on the 8th was held and on the 13th of June Mr Walker Smith was dismissed, having had a proven case of gross misconduct made against him. He was summarily dismissed on that date (and so never got the chance to work his notice period).

I think the factual scenario is a good one to consider three issues:

  • Can a resignation be retracted?
  • Is resigning with notice a way to avoid disciplinary proceedings
  • What if the employee breaches the contract and resigns without notice.

Can a resignation be retracted?

As was the case for Mr Walker Smith when faced with a notice of an imminent possible dismissal, or some other unwelcome decision of an employer it is a common response for an employee to want to resign. It is certainly not unknown for an employee in a pique of anger at the employer’s decision to respond by resigning, only to regret that later.

As set out above, and in my earlier post, the basic position appears to be that if the resignation was not properly thought through and was made in haste then, if an employee then promptly retracts that decision then there is no resignation – and the contract of employment is either revived or the employee is dismissed (with the possibility of the employee claiming unfair dismissal).

However, the employee needs to act quickly. In Mr Walker Smith’s case it noted that even if the resignation was in the heat of the moment (the Appeal Tribunal was not convinced) the resignation was retracted a full 12 days later – in these circumstances the resignation must be treated as effective.

Is resigning with notice a way to avoid disciplinary proceedings?

One of the more interesting arguments I have had with a HR adviser for an employer arose out of just this situation. An employee resigned in response to a disciplinary proceeding against her (against my advice) and worked her notice but the employer could not complete the investigation before the end of the notice period when she left employment. Unbeknown to me or the employee the investigation continued and in due course some weeks later a letter was sent to the employee explaining she had to attend a disciplinary hearing where she may be dismissed. How, I asked (with as straight a face as I could muster,) did the employer think it could dismiss an employee who no longer worked for them and had fully complied with her contract. Remarkably, the HR adviser did not really see the problem and asserted a dismissal was still possible. In the event, a senior manager did what I often recommend they do, ignore the advice they receive and apply some common sense.

Mr Walker Smith evidently thought that resigning employment would avoid the disciplinary proceedings. In his case this was not successful. If an employee is working their notice then for that period they are subject to the contract of employment and the disciplinary proceeding can continue; if there is sufficient time in the notice period for the whole process to run its course then an employer can (if they have reasonable ground) dismiss for gross misconduct and this has the effect of overriding the resignation. However, if under the contract the notice period is short then a resignation may well have the effect of ensuring an employer is unable to complete a disciplinary process.

The benefit if this happens is that there is no formal proven finding of misconduct or sanction applied and so any subsequent employment reference should not make any reference to any proven misconduct, although an employer may legitimately explain that their employment ended while there was an unresolved disciplinary action being progressed against them.

As a general rule however, while a well timed resignation might help an employee avoid a disciplinary hearing it is not something I recommend. By doing so an employee avoids the opportunity to put their side of the case, appeal against any disciplinary decision and mean they were not dismissed and so have their opportunity to challenge any disciplinary proceedings severely curtailed, if not completely removed.

What if the employee breaches the contract and resigns without notice?

Where a notice period is worked any disciplinary proceeding an proceed during that period. If  an employee such wants to avoid the disciplinary hearing completely then they can resign immediately and not work notice. Sometimes if the disciplinary procedure is unfounded then a constructive dismissal claim may be made. More commonly however, they simply leave employment. If an employee does this then they will almost certainly have broken their contract of employment and the employer could (but unless large figures are involved probably won’t) sue the employee for breach of contract to recover the costs arising from the breach. I say almost as I recall one case in which by a quirk of contract a persons over a certain age could resign with no notice under contract and so the day before a misconduct hearing at which the employee would certainly be summarily dismissed the employee resigned and so avoided the dismissal (I am not sure this is healthy but I took some satisfaction from that, especially as the employee was also prosecuted for the same offence).

In practice, notwithstanding the erstwhile HR adviser’s delusions, a resignation without notice will mean an employee is recorded as resigned rather than dismissed and many employers, knowing that an unfair dismissal claim from such a situation is very unlikely, will be happy with this. An employer may however, still be minded to make reference to this in any references, especially if the alleged offence is one of dishonesty or they are employed in a regulated profession.

Employment Wrongs, Fair Investigation, Misconduct, Unfair Dismissal

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

Disability, Equality Act 2010, Misconduct, Reasonable Adjustments

Disability and Disciplinary Dismissals

3 Comments

disabilityIn recent weeks the Employment Appeal Tribunals judgement in Thomson v Imperial College Healthcare NHS Trust has been published. The key issue which has been attracting comment is the endorsement of the first tier tribunal’s decision that a dismissal may be unfair because of the choice of the decision maker, even when there is no accusation of bias, and the choice of the decision maker was entirely consistent with the employer’s disciplinary decision.

The decision is an important one to which I may return to in in a later article; however, the case also concerned a complaint of disability discrimination.The decision on this point is not ground-breaking in legal terms but it does I think raise some helpful issues for employee representatives dealing with disciplinary proceedings where disability is alleged to be a factor.

The claimant was a Consultant Neonatologist who was dismissed for bullying colleagues. She was at the time of the misconduct subject to a formal warning for misconduct but was dismissed for gross misconduct so the prior warning had little significance for the case. The claimant was also claimed she was disabled by reason of her dyslexia which the Respondent conceded at a Case Management Discussion. During the proceedings the claimant sought to suggest she was disabled by reason of her dyslexia and depression and following an amendment to the claim the claimant made a complaint that the Respondent had failed to make a reasonable adjustment for the claim.

The claimant alleged that the Respondent operated a “a practice of normally dismissing in the case of conduct found to be gross misconduct.” This was the provision, criterion or practice required by section 20(3) of the Equality Act 2010 that was alleged to place the claimant at a substantial disadvantage. The main contour of the allegation is found in the ET’s determination of this complaint, which is cited in paragraph 14 of the EAT’s determination:

Did the (valid) PCPs put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who were not disabled?  We have reminded ourselves of the wording of paragraph 48 of the amended Grounds of Appeal (quoted above).  The comparative disadvantage was said to arise from the alleged fact that the Claimant’s disability made her more likely to be found guilty of conduct amounting to or perceived as bullying.  That is to say more likely than persons who were not disabled.  Essential to the argument is the stated link between dyslexia and/or neurodiversity (the disability or disabilities pleaded) and the behaviour liable to amount, or be perceived as amounting, to bullying.  In our judgment, the insurmountable difficulty confronting Mr O’Dair is that the link is simply not made out.  Dr Harrison’s evidence in answer to Dr Mitchell’s first question was very clear (see above).  He makes no connection between dyslexia or neurodiversity and bullying behaviour or conduct which might be seen as harassment.  Nor does Dr Roberts offer any support for Mr O’Dair’s theory.  Subtle problems of perception and misreading of verbal cues are a world away from the sort of behaviour of which the Claimant was accused.  As the case progressed Mr O’Dair appeared to seek to overcome these difficulties by focusing on the evidence of Professor Harrison pointing to incipient depression.  But the obvious answer to that is that we are not dealing with a disability discrimination case based on depression.  No such complaint is before us.

 Dr Harrison’s answer referred to above was in respect to the question posed which was in “your opinion is it likely that the bullying and harassing behaviour are due to dyslexia?”. Dr Harrison’s answer was “I am unaware that dyslexia per se is considered to be a cause of bullying and harassment.  Indeed, I would say that the opposite is more likely to be the case, ie people with dyslexia may be the victims of bullying by others. Dyslexia may be associated with other conditions.  This has been termed neurodiversity.  Examples of other conditions include dyspraxia, dyscalculia, ADHD and Autism Spectrum Disorder. … As a consequence of having neurodiversity, low self esteem may develop leading to depression and anxiety.  People who are increasingly anxious or depressed may behave erratically and may display irritability and short temper and lack of tolerance of others.”

The EAT dispatched with this case quickly (and in my view correctly) as follows (paragraph 24):

So far as depression is concerned, on which Mr O’Dair places considerable reliance for his aggregation argument, on the evidence placed before the Tribunal we see from the later letter of 25 July 2012 from Professor Harrison to Mr Kuku, the BMA representative Senior Employment Advisor acting for the Claimant, the Professor’s  view of the Claimant’s anxiety was as follows:

“… Based on my own assessment, I had formed the view that she had developed an adjustment disorder including anxiety and depression.  Although I have not had contact with the MedNet psychiatrist, it appears that there is an external opinion that Merran is suffering from severe stress and reactive depression.  In my judgement I think this is due to the effect of the investigations that have taken place, the outcome of the first investigation which placed her on a final warning and concerns that more complaints have been made about her. …”

That is a clear opinion expressed that any anxiety and depression observed in the Claimant was caused by the processes which led to her dismissal.  In other words the investigations into her conduct and what happened thereafter.  They do not, in our judgment, lend support to a suggestion that the Employment Tribunal erred in failing to hold that the Claimant was suffering from depression at the material time, whether or not that was to be relied on as constituting the disability for the purpose of their claim before them standing on its own alongside the dyslexia or as amalgamated with it, as in the Patel case, resulting from dyslexia.  On the evidence before the Tribunal, in particular Professor Harrison’s letter of 25th July 2012, on whose previous letter considerable reliance was placed, Professor Harrison was of the view that such anxiety and depression was caused by the inquiry into the complaints against the Claimant and was not present at or before the events which led to the inquiry.

In short, the claimant’s disability, dyslexia, could not be held to have been a made the claimant more prone than she would have been but for her disability to result is misconduct action (and in turn dismissal) proceedings being instituted against her. Therefore, the link between the claimant’s disability and the alleged substantial disadvantage (greater likelihood of being dismissed) was simply not made out. In passing even if the link was made out is would appear to me that, following Griffiths v Secretary of State for Work and Pensions the claimant would still have been unsuccessful since substantial disadvantage could not be established since a non disabled employee would also have been dismissed in such circumstances. That is a fundamentally unfair provision and one can only hope that the appeal against the EAT’s decision in Griffiths is overturned when the Court of Appeal comes to issue its judgement on the appeal (heard in February I understand).

As I have written before there may be cases (and even cases of criminal misconduct) where a finding of deliberate or intentional wrongdoing owing to disability cannot be sustained and, therefore, a finding of gross misconduct is impermissible. These are likely to be rare, however.

Trade union reps are much more likely to encounter situations where a disabled person may be more likely to resort engage in misconduct offences than they would but for their disability. In such cases there are potential arguments of failure to make adjustments, discrimination arising from disability and indirect discrimination.

An example would be precisely the type of case alluded to in the medical evidence in Thomson. A person on the Auspergers Spectrum can sometime have difficulty in interpersonal relationships. This disadvantage, especially in times of heightened stress, can lead to raised voices and comments being made in anger/exasperation. I have seen this type of situation result in disciplinary proceedings.

It is in this context that the Thomson judgement serves as a useful reminder to reps. What seems apparent was the EAT had no difficulty accepting that a normal practice to dismiss was a provision, criterion or practice for the purposes of the duty to make reasonable adjustments under the Equality Act 2010 (and by implication also under section 19 of the Act). And so, where a person’s disability has an effect on their conduct but not to the extent where it gives a complete defense on culpability grounds (as in Burdett) there is still the prospect, even if a non disabled person would be dismissed for the same act for a claim to be made the application of that practice represented a failure to make adjustments and/or indirect discrimination.

Case references:

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

Griffiths v Secretary of State for Work and Pensions EAT/0372/13

Burdett v Aviva Employment Services Ltd [2014] UKEAT 0439_13_1411

Fair Investigation, Misconduct, Unfair Dismissal

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

Employment Tribunal, Employment Wrongs, Fair Investigation, Misconduct, Unfair Dismissal

Unfair Dismissal and the Myth of Red Tape

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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.
Misconduct, Unfair Dismissal

The Obligatory Top Gear Employment Law Post

Jeremy Clarkson could be waving goodbye to his BBC career this week as his disciplinary hearing is expected to deliver its verdict.
Jeremy Clarkson could be waving goodbye to his BBC career this week as his disciplinary hearing is expected to deliver its verdict.

This week the fate of Top Gear’s Jeremy Clarkson should be decided.

The background facts do not appear to be contested (although no-one external can know for sure): Clarkson got into some type of fracas in a canteen with a more junior colleague and hit him.

I have not seen the BBC’s disciplinary policy but it is hard to imagine that hitting a colleague, and certainly a more junior colleague is not a dismissible offense. The ACAS Code of Practice, at paragraph 24, advises that:

Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.

The allegations against Clarkson are of “physical violence” and are one of the examples of types of offense which are likely to amount to gross misconduct if proven. I can’t say I have any great sympathy for Clarkson, he has a history of making arguably bigoted and disgusting comments against others, especially minority groups and unions which should have got him the boot long before now. Still, I do not know the circumstances and so it is wrong for some, like Owen Jones, to call for his dismissal. Even if, as seems likely, he did punch a colleague I do not, for example, know whether there were any mitigating factors in play. Let’s suppose he was on medication of the type that affects behavior, or he had just received a devastating phone call telling him of the death of a loved one then that may be sufficient mitigation to justify him avoiding the sack. Similarly, it is at least equally as wrong for the Prime Minister to call on the BBC not to sack him. The fact is only those hearing the case will have the full story.

There is however reason for the BBC to be cautious about being too ready to accept mitigation as a means of avoiding the need to dismiss him. Yesterday the Mirror picked up on comments by the the law firm Irwin Mitchell:

The BBC now has to decide what to do and with so many licence payers signing a petition to have him reinstated, the corporation could be making a ‘rod for its own back’ if they put their demands first and decide not to terminate Clarkson’s employment. ‎

This would mean that it could be leaving itself open to unfair dismissal claims from other staff in the future if they are dismissed in similar circumstances or for other perceived gross misconduct offences and Clarkson is not.

Each unfair dismissal case is judged on its own facts and, truth be told, I am not completely convinced Irwin Mitchell are right. As was shown in Levenes Solicitors v Dalley [2006] UKEAT 0330_06_231, for example, even where treatment is disparate this will often not mean a dismissal is unfair.

It is however, an important issue, that is raised between how employers treat the misconduct of senior staff compared to that of more junior staff. Certainly, senior managers are dismissed but I do think there is a particular trend in some large employers for senior managers to avoid dismissal when, but for their seniority in an organisation, they would have been dismissed. This is actually the reverse of what should be expected objectively speaking: the more senior an employee the more significant the trust and confidence that that employee holds and, therefore, the more likely that such an offense destroys the employer’s trust and confidence in an employee.

I think it is clear that some in the BBC higher echelons do not have the best regard for Clarkson so the situation is, I suspect, unlikely to arise but if her were to keep his job it would still be extremely interesting to see how the BBC responds to the subsequent more ‘run of the mill’ disciplinary investigations that would invariably follow. Perhaps the first would be Clarkson’s co-presenter’s refusal to work and instigation of an unlawful strike?