Process, process, process...
This is a must read for all employers who believe they have a cast-iron case for summary dismissal and allow that conviction to inform the disciplinary process. As one has to constantly remind respondent clients the Employment Tribunal is not concerned with the merits of the dismissal per se but the process which lead to that dismissal.
I would not ordinarily resort to verbatim extracts of the judgment but they speak for themselves.
The Claimant’s conduct
The Claimant had been absent from school without leave having, the Tribunal determined, pre-booked a holiday which clashed with the contractual obligation to attend work
[125] "[The Claimant] lied to the headteacher about going to Georgia. We determine that he was never going to attend work for that last week. [He] had a pre-booked holiday (as evidenced by his boarding card) to Croatia."
"..we now view [the Claimant] as a dishonest person both because of the lies he told at the time and, more shockingly, in respect of the deliberate creation of misleading evidence" (Is it time for Employment Tribunals to have powers equivalent to Section 57 Criminal Justice and Courts Act 2015 relating to personal injury claims, allowing it to dismiss a claim where the claimant has been fundamentally dishonest in relation to that claim)"
"[126] The claimant was guilty of blameworthy conduct. His absence was serious but not necessarily overwhelming. It is his lies that have disturbed us most."
[98] "We are satisfied that the claimant was accused of gross misconduct offence in accordance with the disciplinary policy. The list of gross misconduct offences in appendix 1 was not an exhaustive list, but the claimant’s probably fits into gross insubordination, e.g. wilfully disobeying a reasonable instruction But in any event the misconduct alleged was sufficiently serious that we regard the offence as a dismissal offence, i.e. one that falls within the range of reasonable responses by an employer to be regarded as such."
One would suppose that at that stage that a properly conduct disciplinary process could have led to summary dismissal.
The disciplinary process
As to the process the Tribunal determined ?
"However, the disciplinary process that the claimant undertook was substantially flawed.[99]"
"[As to] the s98(4) ERA test the Tribunal determined [100] : We believe the respondent followed an unfair process or procedure such that no similar employer in similar circumstances would follow, i.e. the process that the respondent followed was outside the range or band of reasonable responses".
"[103] the disciplinary process carried on, we assess because the respondents had made up their mind that the claimant was guilty and they wanted to bring him to a disciplinary hearing as quickly as possible. … The actions in proceeding with the disciplinary procedures was reckless There was a rush to dismiss. We determine that this was outside range of reasonable responses."
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"[106] The Head Teacher had essentially established the facts ... She had made a judgment that the claimant had misrepresented his absence, and this was before she heard from the claimant. The Head Teacher had determined that the claimant’s actions were unacceptable before instigating a disciplinary investigation from her deputy. …, it is clear the investigation served little purpose. The Head Teacher who directed the investigation had established the facts to her liking."
"[108] The investigation report is extraordinary. The report was short, inaccurate and hopelessly biased. The language is condemnatory of the claimant. Ms Carmichael[1]John’s investigation was not undertaken with an open mind. She built a case against the claimant and discounted anything that might not suit the claimant’s dismissal. Such a bias investigation was a breach of the ACAS Code of Practice"
"[132] The Head Teacher’s fingerprints were all over this process"
"[123] So, the investigation was biased and profoundly unfair. There is a significant breach of the ACAS procedure. The respondents did not undertake the investigation fairly or reasonably. It was important to keep an open mind and look for the evidence which supports the employee’s case as well as evidence against this and the investigation should have confined itself to establish the facts of the case. The dismissing officers could not have come to an honest belief in the claimant’s guilt based upon such a flawed investigation. The respondent fails the Burchell test at all 3 levels."
"[115] In addition… the chair of the disciplinary hearing allowed a decision to be made that relied upon evidence that the claimant had not seen and did not know about. This was indicative of an unfair process and no reasonable employer in similar circumstances would have proceeded in such a manner. Faced with the non-attending party any reasonable employer would establish what information he had been sent and would have given him the opportunity to comment upon it
[121] The appeal outcome largely ignored the claimant’s grounds of appeal. [It] did not come to an independent conclusion, the appeal merely rubber stamped a bad decision."
Remedy
"[124] However, that leaves us with allegations of serious wrongdoing and a dishonest claimant. In respect of a Polkey deduction, there was no minor defect in the respondent’s application of its dismissal procedures, its defects were fundamental and profound. Some processes adopted by the employer are so unfair and so fundamentally flawed that it is impossible to formulate the hypothetical question of what would be the percentage chance the employee had of still been dismissed even if the correct procedure had been followed: see Davidson v Industrial & Marine Engineering Services Ltd EATS/0071/2003"
"If the disciplinary investigation had some merit to it, then we may have accepted the applicable of a Polkey deduction. However, the circumstance of this case was that the respondent wanted rid of this employee and irrespective of his health or the other evidence or mitigation the respondents were determined to get rid of him. …No reasonable employer would have adopted this approach. Consequently, we make no Polkey deduction".
"[126] The Employment Judge concluded that the school did unfairly dismiss the teaching supervisor, however because of his dishonest conduct, he was partly to blame. This means that [his] compensation for his unfair dismissal, this will be substantially reduced".
"The claimant was guilty of blameworthy conduct".
"[127] The claimant's misconduct clearly contributed to his dismissal. We were resolved to reduce both the claimant’s basic award and compensatory award by 70 per cent".