A small fire broke out in a children's nursery. The claimant was accused of having tried to start the fire and, following an investigation and disciplinary hearing, was dismissed for gross misconduct.
The claimant indicated that she wished to appeal against the decision and the employer, which was a small organisation, arranged for the appeal to be conducted by an independent external body. Whether the appeal panel or the employer itself would take the final decision about the claimant's employment was not expressly agreed, although the employee was told that the decision made at the hearing would be final and that there would be no further right of appeal.
Following the appeal the panel decided to overturn the decision to dismiss, largely because of concerns about the procedure that the employer had followed in investigating the incident. The employer considered the panel's views and carried out some further investigation but ultimately declined to follow the panel's decision. The claimant's dismissal therefore stood.
The EAT had to decide whether the failure to follow the panel's decision made the dismissal unfair and decided, upholding the original tribunal decision, that it did not. There was no rule of law that said that an employer could depart from the decision of an appeal panel only in "exceptional circumstances". Looking at the procedure that had been adopted as a whole, as it was required to do, the tribunal was entitled to conclude that it was fair. The size of the employer, the fact that it was responsible for the welfare of the children in its care and the point that it still felt that there were reasonable grounds to consider that the claimant had tried to start a fire were all relevant factors.
The case is a useful reminder that an employer's size and resources are key factors in deciding whether a failure to follow all the steps set out in the ACAS Code of Practice on Discipline and Grievance Procedures renders a dismissal unfair.