In Adeshina v St George’s University Hospitals NHS Foundation Trust the EAT upheld an Employment Tribunal's decision that an employee's dismissal was fair despite serious disciplinary procedural failings. The EAT found that because the internal appeal hearing had been conducted fairly this remedied the previous flawed procedure. The EAT also upheld the Tribunal's findings that the dismissal was fair despite the members of the appeal panel not strictly meeting the standards set out in the ACAS code.
In order to demonstrate that a dismissal is fair an employer must show that it was for one of the potentially fair reasons set out in the Employment Rights Act 1996 (ERA). Further, they must demonstrate that the decision to dismiss fell within the range of reasonable responses available to the employer. Employers should also comply with the provisions of the statutory ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code). The ACAS Code is supplemented by best practice guidance. This states that internal appeals should, wherever possible, be "heard by someone senior in authority to the person who took the disciplinary decision and, if possible, someone who was not involved in the original meeting or decision". It is possible for initial procedural flaws to be remedied on appeal.
The EAT, in this case, had to decide whether this remedy requires the appeal to be in the form of a rehearing, rather than just a review. The EAT also had to decide whether failing to meet the standards for the appeal panel, set down in the ACAS Code, made the dismissal unfair.
The Claimant was a Principal Pharmacist in the Prison Service. She was tasked with leading a project to change the way in which prison pharmacy services were provided. She was resistant to the project and this contributed to her eventual dismissal.
Various allegations of misconduct were raised against the Claimant, including unprofessional and inappropriate behaviour and failure to co-operate, support and lead the project. A disciplinary hearing was conducted by Ms Ashworth. There were procedural failures at the hearing. In particular the Claimant was not given advance notice of some of the reasons for her dismissal.
The Claimant appealed the decision and a rehearing was conducted. The appeal panel comprised three senior managers plus an independent advisor. The Claimant objected to the appointment of one of the members of the panel on the basis that they had been involved in an operational policy document, which formed part of the case against the Claimant. The panel upheld the decision that the Claimant's conduct amounted to gross misconduct and that dismissal was the appropriate sanction.
The Claimant brought claims for unfair dismissal, wrongful dismissal, whistleblowing, race discrimination and victimisation. The Employment Tribunal (ET) found that there were flaws in the first stage of the disciplinary process which meant that the employer could not have held a reasonable belief in the Claimant's misconduct. However, the rehearing corrected those flaws and, overall, the dismissal was held to be fair. The Claimant appealed the decision.
The EAT dismissed the appeal.
When looking at the question of fairness the ET was bound to consider the process overall, including any appeal, together with the reason for the dismissal. The EAT found that the ET had proper regard to the nature and extent of the flaws at the first stage of the process. The EAT rejected the assertion made by the Claimant that the initial unfairness was so serious that it could not be remedied by an appeal process. The process should be considered in the round. The ET had considered these flaws in the context of the appeal process, and had concluded that, although serious, the flaws had been remedied. The ET had taken into account all factors and reached a conclusion properly open to it.
The EAT then considered whether the appeal process itself was flawed due to the membership of the panel. The EAT found that a fair-minded, informed observer would not consider that there was any appearance of bias in these circumstances. The EAT noted that senior managers will have involvement in the management of a number of employees and may also sit on disciplinary panels in which those employees might be involved. Therefore, to require an employer to rigidly follow the ACAS guidance and avoid any link with the Claimant was both unrealistic and undesirable.
In considering the ACAS guidance that panel members should be senior in authority to the person who took the disciplinary decision, the EAT acknowledged that one member of the panel was junior to Ms Ashworth. However, the EAT noted that the member was one of a panel of three, which included two members who were senior to Ms Ashworth. The panel also received independent advice from a senior pharmacy professional. Therefore, the EAT held that the ET in concluding that there was no bias in the appeal panel, had reached a view open to it.
As the employer conducted the appeal as a rehearing rather than a review, despite the early serious procedural failings, this remedied the initial procedural defects and the overall decision to dismiss was deemed to be fair. Therefore, there was no need for the EAT to discuss whether only a rehearing can remedy procedural defects at earlier stages.
It is worth noting that, in reference to the employer failing to meet ACAS standards, the EAT recognised the challenges employers face in meeting these standards and adopted a realistic approach that did not rigidly apply the ACAS Code. The EAT accepted and endorsed the general advice given by ACAS but noted that the guidance had to be seen in context.