In Thomson v Imperial College Healthcare NHS Trust the EAT has confirmed a tribunal's decision that a dismissal procedure was unfair because the panel chair had no previous experience of disciplinary hearings.

The claimant in Thomson v Imperial College Healthcare NHS Trustwas a senior consultant who had been given a first written warning for bullying senior colleagues. Three further allegations of threatening and disrespectful behaviour towards colleagues were made against her and, following a disciplinary hearing, she was dismissed.  The chair of the disciplinary panel, another consultant, was in the category of those qualified to chair such a panel, but there was no evidence that he had any training or experience to carry out that duty.  The tribunal concluded that this inexperience made the dismissal procedurally unfair and took the employer's behaviour outside the "range of reasonable responses".

The EAT upheld the tribunal's decision. The decision-taker's lack of experience had denied the claimant a fair hearing; fairness required that her case should be heard by someone with the ability and experience commensurate with the demands of her case.  Further, the lack of training and experience resulted in the misapplication of the disciplinary process.  Although the decision-maker did not regard the three incidents, singly or collectively, as amounting to gross misconduct, he erroneously believed he could elevate cases of serious misconduct to gross misconduct because of the context of the earlier warning, the impact on the individuals involved and the perceived risk of wider impact on the team if the claimant remained part of it.  This mishandling of the process rendered the dismissal outside the range of reasonable responses and unfair.

It was argued on behalf of the employer that since disciplining senior employees is very rare, individuals cannot be expected to have experience of carrying out that exercise.  But the message from this case is that if a disciplinary process could result in dismissal and the proposed decision-taker is inexperienced, then the risk of a finding of procedural unfairness could be reduced by providing training there and then on handling the process fairl