Dismissing after abandoning informal action is unfair - says Court of Appeal

The Court of Appeal confirms that a dismissal is unfair where minor offences are dealt with through an informal misconduct procedure, and an employee is subsequently dismissed for them.

The Facts

In Sakar v West London Mental Health Trust (‘Trust’), the Claimant was a consultant psychiatrist who was investigated by the Trust in accordance with their ‘Fair Blame Policy’ (FBP) following several complaints from staff concerning the Claimant’s ‘harassing and distressing’ conduct.

The FBP was an informal procedure designed to deal with conduct issues; it was not a disciplinary procedure. The most severe sanction under the FBP was a formal written warning. When the Trust’s medical director stated she would report the Claimant to the General Medical Council, he withdrew from the FBP and allowed himself to be dealt with via a formal disciplinary. He was summarily dismissal for gross misconduct. The Claimant brought a claim for unfair dismissal.
The Employment Tribunal (ET) held that the Claimant had been unfairly dismissed on the basis that the Trust had chosen to deal with the Claimant’s conduct through their FBP thereby implying the alleged misconduct was relatively minor in nature. It was unreasonable to subsequently regard the same offences as matters of such seriousness so as to constitute gross misconduct to summarily dismiss. As the FBP had been ‘intentionally frustrated’ by the Trust they ‘could not reasonably sabotage those discussions and then proceed down the disciplinary route of alleged gross misconduct’. The Trust appealed.

Employment Appeal Tribunal (EAT)

The EAT considered the Trust’s actions using the ‘range of reasonable responses’ test and overturned the ET’s decision. The Claimant appealed.

Court of Appeal (CA)

The CA overturned the EAT’s decision and restored the decision of the ET, thereby holding the dismissal to be unfair. It was held that the ET was entitled to consider that it was inconsistent for the Trust to use the FBP, thus indicating the misconduct was minor in nature, then to dismiss for gross misconduct based on much the same matters.

Practice Points

When dealing with the issue of an employee’s conduct it is important for an employer to carry out an appropriate investigation from the outset so as it clear to all concerned whether the matter is informal or formal. Once a decision is made as to the severity of the conduct in question, it is clear employers must stick with the chosen process and not give up in an attempt to draw matters to (a false) swift conclusion.

For further information please contact our Employment Team by telephone on 0118 9527584 or by email at elg@boyesturner.com.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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