WorkLife

Our thoughts on the world of employment law - and beyond.

Papering over the cracks?

If only employers could wave a magic wand and remedy any defects or omissions that occurred during a disciplinary or grievance process. Well, in some ways, they can as the recent case of Adeshina v St George's University Hospitals NHS Foundation Trust and others UKEAT/0293/14 has shown.

In Adeshina, the EAT upheld the Tribunal's decision that procedural flaws in the first stage of the disciplinary process, and a failure to comply with the Acas Code, did not result in the employee's dismissal being held to be unfair.

Background

Allegations of misconduct were raised against Ms Adeshina (a pharmacist in the Prison Service) including unprofessional and inappropriate behaviour. A disciplinary process commenced which led to Ms Adeshina's eventual dismissal. However, there were a number of procedural failings throughout the disciplinary process. One such failing was that the manager hearing the appeal based the decision partially on matters which had not been put to Ms Adeshina.

Perhaps unsurprisingly, Ms Adeshina appealed the decision. The appeal was a full rehearing of the matter and the appeal panel was comprised of: a senior manager who had been involved in a document which was part of the case against Ms Adeshina, a mentor to one of the victims of the alleged misconduct, and a direct report of the manager who had conducted the disciplinary hearing.

According to the Acas Code, so far as is possible, an appeal should be dealt with impartially by someone not previously involved in the case. The non-statutory Acas Guide also recommends that the person conducting an appeal should be more senior than the person responsible for imposing the disciplinary sanction in the first instance. It should certainly not be someone less senior, who might simply defer to the decision of his/her superior.

The appeal panel upheld Ms Adeshina's dismissal. Soon after, Ms Adeshina brought a number of claims (including unfair dismissal) against her employer. The Tribunal dismissed the claims and held that although there were defects in the initial disciplinary process, these flaws had been corrected by the employer on appeal.

The EAT's decision

Ms Adeshina appealed the decision, but the EAT found that:

  1. the Tribunal had had regard to the nature and extent of the flaws at the first stage of the disciplinary process, these flaws had been considered during the appeal and the Tribunal had properly concluded that the flaws had been remedied;
  2. the reality is that senior managers may be involved in the management of a number of employees and sit on disciplinary panels in which those employees might be involved. It would be both unworkable and undesirable for senior managers to avoid this. Therefore, prior dealings with an employee, without something more which suggested bias, could not render the dismissal unfair; and
  3. the Tribunal had been aware of, and had given specific consideration to, the roles of appeal panel members when assessing the question of fairness.

What does this mean for employers?

The EAT's decision in Adeshina has shown that procedural defects in an initial hearing may be remedied on appeal, provided that the appeal is sufficiently comprehensive. Whether this requires the appeal to be in the form of a rehearing, rather than just a review of the original decision, is not entirely clear. In Taylor v OCS Group Ltd [2006] EWCA Civ 702 the Court of Appeal took the view that the duty of a tribunal is to assess the fairness of the disciplinary process as whole. But this general statement about fairness has given employers little certainty as to which form of appeal should be adopted. Following Adeshina, if an employer seeking to remedy any procedural defects or omissions, it would perhaps be prudent to conduct appeals as rehearings.

The case also highlights a problem that many small employers may encounter – the question of who should hear an appeal. It is good news for employers that the EAT adopted a pragmatic approach, rather than a strict interpretation of the Acas Code, but we would nonetheless recommend that it is worth considering who should hear an appeal from an early stage and ensuring that – if at all possible - these individuals are not involved in any way in the disciplinary process beforehand.  Alternatives may be to involve an external person in the appeal – this is never ideal, and can lead to tricky issues over their precise remit, but it can work successfully if carefully framed.

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