The law regarding unfair dismissal is a great deal more straightforward in its operation than has been suggested by many sections of the press or the likes of the Beecroft Report.
To establish that a dismissal on the grounds of misconduct was fair, the employer has to be able to demonstrate that at the time of dismissal,
- it believed the employee to be guilty of the misconduct concerned;
- it had reasonable grounds for believing that the employee was guilty of that misconduct;
- it had carried out as much investigation as was reasonable in the circumstances.
Provided the employer can meet those criteria then the question will be whether dismissal was within the reasonable range of responses and not whether a tribunal thought it was reasonable to dismiss the employee on the facts, a point that has been recently reinforced by the Court of Appeal.
The fact is that these guidelines can be usefully applied not just to misconduct cases but to cases involving capability or poor performance.
Where employers still seem to struggle however is in the conduct of the investigation; the things to be taken into account when bringing such an investigation to a disciplinary hearing and how to deal with previous disciplinary warnings.
So where do employers stand on expired and unexpired warnings?
Back in 2008 the Court of Appeal firmly quashed a decision that an employee had been unfairly dismissed because the employer had taken into account an expired disciplinary warning in its decision to dismiss. The employee working a night shift was given a final written warning for watching television when he should have been working. It expired in August 2005 but on 20 September 2005, three weeks after the expiry of his final written warning he was found doing exactly the same thing again. He was dismissed summarily due to his previous record but his colleagues were not dismissed because they had no previous disciplinary record.
Prior to that case, it had been suggested that employers were obliged to ignore expired warnings for all purposes when considering the appropriate disciplinary sanction. The court concluded that it would not be unreasonable for an employer to take into account an expired warning and the underlying misconduct which brought about that warning in circumstances where these were not the principal reasons for dismissal. In other words, it is a matter of common sense.
What recent cases have demonstrated is that employers really struggle to manage the process, but it is mostly because they overlook the basics. There are a number of helpful cases which suggest employers have a certain latitude in conducting a reasonable investigation but we suggest that when taking disciplinary action employers should consider the following steps:
undertake a reasonable investigation into all of the allegations. This may start as a simple examination of the papers but it is crucial to make a list of all the issues to be considered before
taking the next step
make sure that the investigation includes a detailed review of all previous incidents which resulted
in disciplinary action
look at all of the facts. With more serious allegations of gross misconduct, especially where the
decision may harm an employee’s ability to continue in their chosen career, care needs to be taken
to ensure that investigation and disciplinary proceedings which follow are robust
put all the evidence considered by the disciplining manager or panel to the employee and provide
the employee with a proper opportunity to respond
take time to consider the evidence and ensure the decision letter captures all of the facts and
considers all the relevant facts including any mitigating circumstances
When it comes to defending a claim, in the event there is a valid earlier warning, the tribunal should take into account that warning and take into account anything that might affect the validity of that warning such as a pending appeal.
The tribunal isn’t entitled to look at a disciplinary warning and then decide that actually some lesser category of warning would be more appropriate but it is not outside the tribunal’s powers to look at the factual circumstances giving rise to that warning and deciding that there might be a considerable difference between the circumstances which gave rise to the first warning and the one that the tribunal is now having to consider.
If the misconduct is something the employer has complained about before then its similarity to the present disciplinary offence will suggest a much more severe penalty is justified than if there is a marked dissimilarity between the two.
Consistency is very important for employers and what the cases in 2012 have told us is that the courts don’t think it is wrong for a tribunal to take account of the employer’s treatment of other employees charged with similar offences; that is going to be relevant to the overall fairness of the ultimate decision.
Generally speaking, where an employee has been given a final written warning, it is unlikely that a subsequent disciplinary offence would be upheld as unfair in the circumstances.
The Court of Appeal has also suggested in a case reported last month that where an employer has provided in a disciplinary procedure that certain conduct will be regarded as gross misconduct, it is not for the tribunal to be too critical of such provisions. The role of the tribunal is to start with the employer’s reasoning for treating the conduct concerned as gross misconduct and then apply the range of reasonable responses test.
There has also been further helpful guidance regarding suspension. What was once thought to be a neutral act has been modified over time. Elias LJ in the recent case of Crawford v Suffolk Mental Health Partnership NHS Trust reminded us that 'even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is' (as previously held by Hale LJ in Gogay v Hertfordshire County Council).
And what of involving the police?
In the Crawford case, many of the allegations centred around mistreatment of a patient (a very sensitive subject) but it is clear from the judgment in the Crawford case that when it comes to the involvement of the police the judges will not take an uncritical view of such actions. The facts were that the employees (both nurses) had tied a patient to a chair in an attempt to physically restrain him. As the judge pointed out, there was obvious justification for restraining the patient in the circumstances (he was being violent and spitting at people) and whilst the complaint was the appropriateness of the procedure adopted to tie him to the chair, it was clear to the judge that the police should never have been involved. Indeed Elias LJ expressed rather trenchant views on the subject:
“I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet 'criminal' being applied to the employee’s conduct.”
Setting out with a pre-determined result in mind usually spells disaster but if the employer gets these things right then even if there is a claim, there is a very reasonable prospect of getting that claim struck out at an early stage. The important thing to bear in mind, especially where dismissal may be the outcome, is that the investigation and disciplinary proceedings need to be conducted with the potential defence of such a claim firmly in the mind of all those involved from the outset.