In Sarkar v West London Mental Health NHS Trust (the Trust), the Court of Appeal has held that an employee's dismissal for gross misconduct was unfair in circumstances where the employer had initially been prepared to deal with the conduct as a minor matter.

The Trust had received complaints from Dr Sarkar's colleagues relating to allegations of bullying and harassment. Following investigation into the alleged misconduct, the Trust and Dr Sarkar agreed that the matter would be dealt with under the Trust's 'Fair Blame Policy' ('FBP'). The FBP is an alternative to the Trust's formal disciplinary policy and is aimed at resolving less serious misconduct or capability issues - the most severe sanction under it is a first written warning.

Attempts at mediation under the FBP broke down. The Trust then sought to commence disciplinary proceedings against Dr Sarkar. The case against him included additional allegations that had not formed part of the original investigation or the FBP procedure. Dr Sarkar was summarily dismissed for gross misconduct.

The Court of Appeal, overruling the EAT's finding to the contrary, held that the employment tribunal had been entitled to conclude that the Trust's initial use of the FBP procedure indicated that the Trust considered the misconduct allegations to be relatively minor. It was therefore inconsistent to base a finding of gross misconduct on these allegations. Furthermore, the tribunal had been entitled to conclude that the additional allegations were not sufficiently serious to justify gross misconduct, taken either alone or in combination with the original allegations.

Impact on employers

  • The case shows how wide the range of reasonable responses test can be and, therefore, how difficult it can be to appeal against, even when it looks as if a tribunal has improperly substituted its own view of how a matter should have been dealt with.
  • Employers that do have the option of using different procedures for minor and more serious matters should be aware that their choice may be irreversible, unless they specifically reserve the right to impose higher sanctions.
  • Employers must have good grounds for invoking more serious procedures if they initially agreed to follow a less serious one.