Case update (3): Unfair dismissal – fair dismissal despite procedural failings

Summary: Do procedural failings and inclusion in an internal appeal panel of an individual who is junior to the decision-maker necessarily result in an unfair dismissal?

No, says the EAT in Adeshina v St George’s University Hospitals NHS Foundation Trust and others available here.

Facts: The employee was dismissed for gross misconduct. She appealed but the decision was upheld by a panel consisting of three senior managers and an independent advisor.

The employee brought a claim for unfair dismissal. The Tribunal dismissed her claim and the employee appealed.

The EAT agreed that the employee had not been unfairly dismissed. The EAT found that there were a number of procedural failings in the dismissal process:

• A member of the appeal panel was more junior to the manager who had conducted the disciplinary process. This is contrary to the recommendations in the non-statutory guide, Discipline and grievances at work: The ACAS guide which supplements the ACAS Code.

• One of the members of the appeal panel was a mentor to a victim of one of the employee’s alleged acts of unprofessional and inappropriate behaviour and had also been involved in a policy document which formed part of the case against the employee. This is contrary to the ACAS Code which states that so far as is possible any appeal against the dismissal should be dealt with impartially by someone not previously involved in the case.

• Part of the decision to dismiss for gross misconduct was based on the employee’s unprofessional behaviour during a two-day senior management meeting. However, allegations relating to her behaviour on the second day of the meeting had not been put to the employee during the disciplinary process.

However, the EAT found that the dismissal was fair because:

• the appeal panel contained two other members who were senior, as well as an independent advisor;

• the failure to put all allegations to the employee in the first stage of the disciplinary process had been cured by the appeal which was a rehearing, rather than a review; and

• the involvement of the panel member in a previous issue had been minor and had taken place 18 months previously.

Further, in relation to the last bullet point, the EAT acknowledged the reality that senior managers will have involvement in the management of a number of employees and may also sit on disciplinary panels in which those employees might be involved. It would be both unworkable and undesirable for senior managers to avoid these connections. Prior dealings with an employee, without something more which suggested bias, could not render the dismissal unfair.

Implications: This is a useful case that highlights a sympathetic approach by the EAT to challenges which many employers face. Small and medium sized employers in particular often encounter practical difficulties when identifying an appropriate appeal manager and find that there is no one of sufficient seniority who is also independent. Large organisations may find it difficult to identify someone who has had no prior dealings with the employee, but who also understands the business unit to which the employee belongs. The EAT has helped by adopting a realistic approach which took into account the challenges that employers face, rather than simply applying the ACAS Code.