The claimant in Adeshina v St George's University Hospitals NHS Foundation Trust was dismissed for gross misconduct. She appealed but the decision was upheld by a panel consisting of three senior managers and an independent advisor. There were a number of procedural failings in the dismissal process:
- The decision to dismiss for gross misconduct was based partly on the claimant's unprofessional behaviour during a two-day senior management meeting. But allegations relating to her behaviour on the second day of the meeting had not been put to the claimant during the disciplinary process.
- One of the members of the appeal panel was a mentor to a victim of one of the claimant's alleged acts of unprofessional and inappropriate behaviour and had also been involved in a policy document which formed part of the case against the claimant.
- Another member of the panel was more junior to the manager who had conducted the disciplinary process.
Despite this, the EAT agreed with the Tribunal that the dismissal was fair because:
- The failure to put all allegations to the claimant in the first stage of the disciplinary process had been cured by the appeal. The appeal had been conducted as a rehearing rather than a review, so there was no need for the EAT to consider the issue of whether only a rehearing can remedy procedural defects.
- Although the ACAS Code on disciplinary and grievance procedures says that appeals should be dealt with by someone not previously involved in the case, prior dealings with an employee cannot on their own constitute bias. Senior managers, particularly in large organisations, are likely to be involved in the management of a number of employees and employers are entitled to utilise the knowledge and experience of their senior management teams. The involvement of the panel member in a previous issue had been minor and had taken place 18 months previously.
- The Code does also recommend that "ideally" the appeal should be conducted by someone more senior than the original decision-maker. But here the panel contained two other members who were senior, as well as an independent advisor.