Summary and implications
There have been some noteworthy Court of Appeal and Employment Appeal Tribunal cases within the last few months which employers should bear in mind when carrying out disciplinary procedures.
Three cases in particular provide helpful guidance on when an employer can fairly dismiss for certain kinds of behaviour (specifically gross misconduct involving serious allegations of abuse, grievances brought in bad faith, and employees interfering in matters beyond their remit). The cases also provide useful feedback on the fairness of the dismissal procedures followed by the employers in the various circumstances.
Employers should take the following key messages from these cases:
When carrying out investigations into allegations of gross misconduct, it is important not to attach weight to one person’s account over another without real justification;
In exceptional circumstances, it is possible to fairly dismiss an employee on the basis that he/she has brought a grievance in bad faith; and
It can be appropriate for an employer to take into account a previous similar incident for which no warning has been given when taking a decision to dismiss.
Gravity of consequences of a finding of gross misconduct
When carrying out an investigation into allegations of gross misconduct, employers should take into account the gravity of the consequences on an employee. The case of Salford Royal NHS Foundation Trust v Roldan reaffirmed this principle and provided some guidance about the weight employers should attach to conflicting evidence in such circumstances.
The case concerned a nurse from the Philippines who was alleged to have abused a patient. A colleague who claimed to have witnessed the events was interviewed and the employer’s disciplinary panel found her evidence more convincing than that of the claimant. The claimant was dismissed, with very significant consequences. She lost her work permit and consequently her right to remain in the UK. She was also subject to a criminal investigation by the police.
The Court of Appeal restored the tribunal’s decision of unfair dismissal, citing the principles set out in a previous judgment in the EAT that, when assessing the reasonableness of an investigation, tribunals should take into account the gravity of the consequences on the employee. It is particularly important that, where these are serious, the investigator must be ‘even-handed’ in looking for evidence in the accused’s favour as well as evidence against him or her. If there is a conflict of evidence, an employer does not always have to decide that it accepts one individual’s version of events over another’s. The employer may even decide that the conflict cannot be resolved; in which case the employee must usually be given the benefit of the doubt.
Dismissing an employee for bringing grievances in bad faith may amount to a fair reason for dismissal
There must be few employers who have not, on occasion, received a grievance which they suspect may have been raised in bad faith. Employers in such circumstances are left with the tricky decision of whether it is advisable – or even possible – to take disciplinary action against individuals who have raised serious false allegations through a grievance procedure. The case of Bashir v Sheffield Teaching Hospital NHS Foundation Trust provides some very useful guidance to employers in this situation.
The case concerned two individuals who appealed against an employment tribunal’s findings that their employer had not unfairly or wrongfully dismissed them for bringing grievance procedures against colleagues in bad faith. The claimants had raised grievances of a racist conspiracy, implicating over twenty of their colleagues. The tribunal found as a matter of fact that the employer was entitled to consider that the claimants acted in bad faith. In particular, the claimants had proceeded with part of their grievance long after they knew it to be false, and caused serious delay to the internal grievance proceedings, both of which resulted in distress to their colleagues.
The claimants’ appeal to the EAT was rejected.
Employers should note that the claimants’ behaviour in this case was beyond the realm of usual unreasonableness and that the EAT was keen to stress that an employee who raises a grievance should normally be protected from being subjected to any detriment as a result.
Previous incidents may be taken into account when considering appropriate disciplinary sanction
It is established law that all disciplinary matters relating to the background of a dismissal are relevant when an employer is considering whether to dismiss – even an expired disciplinary warning. But what about an incident which has not been treated as a disciplinary matter?
In London Borough of Brent v Fuller, the claimant, Mrs Fuller, was an administrator in a school for children with social and emotional difficulties. In May 2007 she intervened when teaching staff were restraining a difficult child and was told immediately by the Head Teacher not to interfere in matters of discipline or behavioural restraint. She was not subject to disciplinary proceedings in respect of the incident. In October 2007 a similar but much more serious incident occurred in which Mrs Fuller intervened again, this time alleging in front of the child that a trained member of staff was holding him in a sexual manner. The claimant was dismissed for gross misconduct.
The EAT ruled that all relevant circumstances to an incident should be taken into account when considering whether to dismiss. Although the claimant had not received a formal warning for the first incident, she had been verbally reprimanded. The first incident was part of the relevant background to the second incident.