But dismissal was unfair as employee was denied the chance to argue his case
In the case John-Charles v NHS Business Services Authority [2015], the Employment Appeal Tribunal (EAT) had to decide whether a dismissal for gross misconduct was unfair when the employee was not made aware of something that was a key factor in the employer’s disciplinary decision and, therefore, was not able to state his version of the events.
When deciding whether a dismissal is unfair, tribunals must consider whether the employer’s reason for dismissing the employee fell within the ‘range of reasonable responses’.
The employee in the case was employed as an IT network engineer from September 2009. He had a history of failing to follow reasonable management instructions which resulted in a first written warning in January 2013.
In October 2012, it was alleged that he had breached the employer’s IT policies, risked corrupting its systems by using an unauthorised device, and had gone in to an office building against the employer’s instructions. As a result of this, a formal disciplinary hearing was heard in March 2013.The employer told John-Charles that the manager in charge of the disciplinary hearing would not be told about the written warning unless the allegations regarding the 2012 incident were proven.
The disciplinary manager upheld some of the allegations and decided that John-Charles had committed gross misconduct, but did not decide on the sanction. She considered giving the employee a final written warning but became aware of the written warning before making a decision. The HR advisor also told her that giving him a final written warning would actually lead to his dismissal as he already had another warning on file, even though the events involved in the current disciplinary action actually pre-dated those that prompted the first written warning.
The manager in charge of the disciplinary process decided the employee had to be dismissed because he had continually failed to follow reasonable management instructions. He was dismissed for gross misconduct and brought numerous claims, including one for unfair dismissal.
Tribunal
An employment tribunal decided the employee had been dismissed because of his conduct in 2012, and that this was a potentially fair reason. His employer had not acted unreasonably in taking the later written warning into account, so the dismissal was fair. The employee appealed.
EAT
The Employment Appeal Tribunal (EAT) allowed the appeal. John-Charles had been unfairly dismissed because he had not been told about the significance of his written warning or been given the opportunity to make representations on what had become a decisive issue during the disciplinary process. This made the dismissal unfair and a ‘breach of the rules of natural justice’.
However, the EAT also held that it was not unreasonable for the employer to take the written warning into account, since it related to his conduct and failure to follow management instructions; it was the fact that he had not been given the opportunity to address it that made the dismissal unfair. The EAT also found that HR’s involvement in bringing the written warning to light had not breached the disciplinary procedure.
Comment
Employees must be given the opportunity to argue their case on all factors that may be important in their employer making a disciplinary decision. If something comes to light after a disciplinary hearing, it should be reconvened to ensure employees have the opportunity to defend themselves, otherwise this increases the risk of the dismissal being unfair.
Earlier this year, in the Ramphal case, EAT found that HR’s involvement in a disciplinary process could make a dismissal unfair but this case serves as a useful insight into a tribunal’s approach. It shows there is some leeway in how much involvement HR can have before overstepping the mark.
Paul Mander is a partner and head of employment and Laura Fairchild is a trainee at Penningtons Manches LLP
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