Case law on discipline and grievance issues

​UKEAT/0352/14
Issue: Disciplinary procedures – misconduct investigations

A compliance inspector with the Department for Transport claimed excessive transport and subsistence expenses and was investigated by a manager on behalf of the employer. The manager’s report was altered and redrafted in conjunction with HR over a six-month period. The changes entailed:

• The manager’s positive comments were replaced with negative ones.
• The offence of misconduct identified by the manager was changed to gross misconduct.
• The sanction was changed from a final warning to summary dismissal.

The employee claimed unfair dismissal. The Employment Appeal Tribunal overturned an employment tribunal’s decision that the dismissal was fair and said the matter had to be reconsidered. The investigating manager’s initial recommendations were too heavily influenced by the HR department.

Implications for employers

• Employers should have a disciplinary, grievance or dismissal policy which specifies the manager with the authority to hear the case. Any decisions to suspend or dismiss etc must be taken by that specified manager.
• Employers should also follow the Acas Code of practice on disciplinary and grievance procedures.
• HR departments should not control managers’ decisions to discipline or dismiss.
• HR advice should be limited to process and procedure and on ensuring sanctions are consistent for employees committing similar misconduct.
• HR should not decide culpability.
• HR can educate managers to reach strong decisions, explaining that they are entitled to take into account common sense as well as ‘hard’ evidence.
• HR should be clear in emails and meetings etc that it will give advice on procedure etc and not its opinion on whether an employee is guilty.
• If there are likely to be documents (such as the paper trail of amended drafts of the investigation report), it may be better to involve a lawyer to gain the benefit of legal professional or litigation privilege, so that the drafts can’t be disclosed. While it is good to document the steps leading to a decision, a paper trail can be damming evidence if it shows that the disciplining manager has been overly influenced.

​UKEAT/0358/12
Issue: Gross misconduct

A consultant working for a NHS trust was certified unfit for work. While on full sick pay from the NHS she did private patient work, for which she was disciplined by the Trust.

During the disciplinary hearings she admitted to the allegations. She had been told by the NHS that, while off sick, she should not work in private practice but she had anyway. The disciplinary hearing found that she had committed gross misconduct and she was dismissed. The Trust did not consider alternatives to dismissal because the matter was one of breach of trust.

The Employment Appeal Tribunal held that finding an employee guilty of gross misconduct did not mean that dismissal had to automatically follow. Dismissal will not always be considered to be fair and fall within the band of reasonable responses because there has been gross misconduct. An employer should take into account any mitigating circumstances such as medical condition, intensity of the work undertaken, length of service, previous clean disciplinary record and the implications involved in being dismissed. This case was returned to the employment tribunal for reconsideration.

Implications for employers

• It is not always reasonable and fair to dismiss an employee who is found guilty of gross misconduct.
• Employers have a range of reasonable responses following gross misconduct which range from an informal warning to summary dismissal.
• A tribunal will ask if the employer’s actions fell within a band of reasonable responses open to the employer.
• Employers must consider all mitigating factors surrounding each case and carefully consider them before making any decision to dismiss.
• Employers should always consider alternative possibilities instead of dismissal and issue warnings where appropriate.
• When deciding to dismiss employers should confirm to the employee an explanation of the mitigating factors they have considered and why these were insufficient to avoid the gross misconduct dismissal.

​UKEAT/0185/12
Issue: Grievance procedures

A supermarket driver with employee status raised health and safety-based grievances against his employer. In accordance with his employer’s written grievance procedure, the grievance was heard by a regional managing director who accepted some of the driver’s complaints and rejected others.

The driver appealed again and the appeal was unsuccessful. The appeal was heard by the same managing director, rather than by a more senior manager. This was a breach of the employer’s own grievance procedure and the Acas Code of practice on disciplinary and grievance procedures.

The driver resigned and claimed constructive unfair dismissal. He based this claim on a breach of the implied term of trust and confidence by the employer. He alleged that, as the employer had failed to follow its own grievance procedure, a proper appeal had not taken place – although he failed to claim that the handling of the grievance may have been a breach of an express contract term as well.

The matter eventually reached the Employment Appeal Tribunal, which held that the failure to follow the grievance procedure could be a breach of the implied term. The case was referred to another employment tribunal for it to reconsider if the employer’s failure to provide an impartial appeal was a breach of the implied duty of trust and confidence.

Implications for employers

• Employers must ensure that grievance (and disciplinary) procedures are not incorporated into employment contracts or contractual parts of handbooks.
• Employers should specify that most procedures are non-contractual in nature.
• The hearing of grievances must always comply with both the employer’s own procedure and the minimum standards set out in the Acas Code of practice on disciplinary and grievance procedures.
• Failure to follow grievance (and disciplinary) procedures may be a breach of the implied term of trust and confidence.
• Failure to follow such procedures can amount to a contractual breach and therefore it could form the basis for a constructive unfair dismissal claim.
• Failure to comply with the Acas Code of practice on disciplinary and grievance procedures may lead to increased compensatory awards of up to 25 per cent more in a later claim.

UKEAT/0569/12
Issue: Grievance procedures – companion at grievance hearing

An employer refused a request from two employees to be accompanied by a trade union official at a grievance hearing, but allowed a work colleague and another trade union official to act as companions instead. The employees accepted the other companions, but later claimed that their right to be accompanied had been breached. The employer said that the chosen companion had to be reasonable and that, if there had been any breach, it had been waived by the employees anyway, as they were accompanied to their grievance meetings and appeal hearings. The employees said that only the right to request had to be reasonable, not the person they chose and the employer should not have refused their first choice.

The Employment Appeal Tribunal (EAT) held that the employee’s request to be accompanied by a particular companion does not have to be reasonable. The employer therefore should have agreed to any companion as long as they fell into one of the approved categories within the meaning of section 10(3) of the Employment Relations Act 1999 (which includes trade union officials, certified union representatives or fellow workers). This right had been breached by the employer. Compensation for breach of the right to be accompanied is normally capped at two weeks’ pay. The Employment Appeal Tribunal said that compensation would be awarded, but that this would probably be nominal as they suffered no loss or detriment as they were accompanied albeit by someone else.

Implications for employers

• When an employer invites an employee (or worker) to attend a disciplinary or grievance hearing, employees (and workers) have a right to be accompanied by a trade union representative or a colleague at that meeting.
• The right applies to meetings where a formal warning may be issued or some other disciplinary action could take place.
• A failure to allow an employee (or worker) to bring a companion will lead to an automatically unfair dismissal claim.
• An employee (or worker) has the right to make a reasonable request to be accompanied.
• If a request is made, an employer must allow the employee (or worker) to be accompanied.
• Employers may be liable for compensation for breach of the right to be accompanied which is capped at two weeks’ pay.
• Paragraph 36 of the Acas Code of practice on disciplinary and grievance procedures will be amended' as it says it is not reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing, nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.
• In fact an employee (or worker) can choose one of two types of trade union official or a work colleague. The choice is the employee’s alone and does not have to be reasonable.
• If a companion cannot attend the hearing must be delayed by up to five days.
• There is still a breach of the rules if a companion is refused and the employee is accompanied to meetings and hearings with other companions.
• Employers should think carefully about requests to be accompanied and should not interfere with an employee’s choice of companion, unless that companion is not a trade union official or work colleague.
• The basic legal position is that employees can only insist on a trade union representative or a colleague. However, many employers voluntarily allow an employee to be accompanied by a lawyer (if the employee asks for this), or choose a family member as a companion instead.

A science teacher was alleged to have committed misconduct during a lesson and was suspended. Following an investigation and disciplinary hearing, she received a final written warning which would remain on her record for two years. Within that period, the teacher committed a further alleged act of misconduct and was subject to a further suspension, investigation and disciplinary hearing. As a result of that second hearing the council dismissed her, taking into account the written warning which she had been given previously. She had previously lodged an internal appeal against the issue of the final warning but that hearing had been adjourned for organisational reasons and never rescheduled.

The teacher claimed unfair dismissal in a case which eventually reached the Court of Appeal. One of the main points she argued was that the final written warning should be treated as a nullity because the council had not considered evidence that might have disproved the alleged misconduct. However, the Court of Appeal dismissed the appeal and confirmed that the dismissal was fair; the tribunal was entitled to find that the council rightfully considered the final written warning when it made the decision to dismiss. All the tribunal had to do was decide if the final warning was something that a reasonable employer could take into account in deciding to dismiss. The tribunal did not have to consider whether the final warning was a nullity, as long as the warning was issued in good faith and it was not manifestly inappropriate to have given the warning at all.

Implications for employers

• Employers should follow their disciplinary procedures to the letter.
• Disciplinary procedures should always at the very least comply with the Acas Code of practice on disciplinary procedures.
• If an employee is guilty of persistent misconduct and the employer follows the proper procedures it should be possible to dismiss.
• A current written warning for a previous incident can be taken into account by employers in deciding whether to dismiss.
• Before relying on a prior warning, an employer should check that the warning was issued in good faith, that it was not manifestly inappropriate and that there was evidence to substantiate it.
• In most cases employers should consider previous warnings and the fact that the employee has appealed but not taken the appeal through to a conclusion.

[2011] UKSC 30
Issue: Disciplinary procedures – right to legal representation

Disciplinary proceedings were initiated against a music assistant in a school over allegations of indecent conduct with a 15-year-old boy. The assistant was subsequently dismissed. The school complied with its duty to inform the Secretary of State for Children, Schools and Families that the employee had been dismissed on the grounds he was unsuitable to work with children. This meant the employee could be added to a list of people prohibited from working with children.

During the disciplinary hearing and appeal, the music assistant asked to be represented by a solicitor but the school refused. He brought an application for judicial review of the decision not to allow him legal representation at the hearing and appeal. The claim was based on a breach of Article 6 of the European Convention on Human Rights (that is, the right to a fair hearing).

The Supreme Court eventually held that Article 6 did not apply to the disciplinary proceedings. It said the music assistant’s right to practise his profession and to work with children would be determined by the final decision as to whether he would be added to the Children’s Barred List. Those proceedings would involve his Article 6 rights. By contrast, the school’s disciplinary proceedings dealt with the employment at the school, and not the right to practise his profession and to work with children anywhere.

Implications for employers

• Employers should always conduct fair disciplinary hearings, following their own procedures and the Acas Code of practice on disciplinary and grievance procedures, otherwise they may be open to a wide variety of claims.
• In ordinary disciplinary proceedings where all that the employee stands to lose is a specific job, then the Article 6 right to a fair trial does not apply.
• Several previous cases (as in Kulkarni v Milton Keynes Hospital NHS Foundation Trust (2009) and R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust have held that if disciplinary hearings may result in depriving the employee of the right to practise their profession entirely, then employers should allow the employee legal representation and conduct an impartial hearing, otherwise Article 6 rights may be invoked.
• If an employer’s decision will not prevent the employee from practising their profession (but will only have an impact on their current employment) then the employer can defeat a claim that the right to a fair trial applies.
• This case confirms the existing law for employers about whether Article 6 is engaged in disciplinary proceedings. This is decided on a case by case basis, depending upon whether the link between the outcome of a disciplinary hearing and the prevention of the employee practising their profession is sufficiently strong.
• In some cases, employers should consider allowing employees to be represented by legal advisor at disciplinary hearing, even though employers do not have to allow this unless the employee’s career is at risk. However, there is then a serious danger that disciplinary proceedings (especially for larger employers and in the public sector) would be turned into a process of litigation with expense and delay for employers.

[2011] EWHC 970
Issue: Disciplinary meetings – legal representatives

An NHS trust dismissed a consultant urologist because of his misconduct, which had involved serious rudeness towards colleagues. He was dismissed after full NHS disciplinary and appeal panel hearings. However, he alleged that his case was not dealt with impartially and independently and therefore his Article 6 rights to a fair trial under the European Convention on Human Rights had been breached. Admittedly it would have been difficult for him to find work within the NHS for sometime, however he got a job in private practice. There was no indication that the allegations against him would result in being struck off the GMC Register. The proceedings therefore related only to his right to retain that specific job and not to practise generally. The High Court held that because he was not prevented from practising his profession entirely there was no need for his employers to comply with Article 6. Even if Article 6 had been triggered, it would not have been breached by the disciplinary process used by the NHS in this instance.

Implications for employers

• Employers should always conduct fair disciplinary hearings, following their own procedures and the Acas Code of practice on disciplinary and grievance procedures, otherwise they may be exposed to a wide variety of claims.
• If a disciplinary panel has several members and only one is external to the employer that is acceptable. Fairness does not require either all, or the majority of a panel to be external to the employer.
• In ordinary disciplinary proceedings, where all that the employee stands to lose is a specific job, then the Article 6 right to a fair trial does not apply.
• Several previous cases (Kulkarni v Milton Keynes Hospital NHS Foundation Trust (2009) and R (on the application of G) v Governors of X School [2010] IRLR 222) have held that, if disciplinary hearings may result in depriving the employee of the right to practise their profession entirely, then employers should probably allow the employee legal representation and conduct an impartial hearing otherwise Article 6 rights may be invoked.
• If an employer’s decision will not prevent the employee from practising their profession (but will only have an impact on their current employment) then the employer can defeat a claim that the right to a fair trial applies.
• This case clarifies the existing law for employers about whether Article 6 is engaged in disciplinary proceedings. This is decided on a case by case basis, depending on whether the link between the outcome of a disciplinary hearing and the prevention of the employee practising their profession is sufficiently strong.