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Procedural defects in unfair dismissal

The Employment Appeal Tribunal (EAT) considered whether the tribunal had made an error of law by deciding that the claimant’s dismissal was fair in Dr Claudius D’Silva v Manchester Metropolitan University and others. The claimant’s case was that his dismissal was procedurally unfair, as he believed that the chairperson on the disciplinary panel was biased and conflicted.

The claimant said it was perverse and wrong that Mrs Hemus, the respondent’s Director of Human Resources, was on the disciplinary panel and held the power to dismiss him. The claimant alleged that Mrs Hemus was unsuitable for the following reasons:

  • She had been involved in unsuccessful grievances that the claimant had raised; and
  • She had been the subject of one of the claimant’s previous employment tribunal claims.

There were other grounds that the claimant relied on for his appeal; however, this article will focus on the above-mentioned ground of appeal, as Mrs Justice Simler’s judgment also did.  Incidentally, the claimant’s previous tribunal claims failed and were found not to have been brought in good faith.

Grievance hearing

The EAT disagreed with the claimant’s version of the facts as to why he alleged Mrs Hemus was not suitable. For example, the EAT accepted that that Mrs Hemus had merely acted as a secretary for the grievance hearings and had not played a role in the decision-making process.

In any case, the main consideration for why the claimant’s appeal was unsuccessful was because the EAT found that the tribunal at first instance had adopted the correct approach to deciding the claim. This was by taking the dismissal process as a whole and not just focusing on one part.

A common theme to Mrs Justice Simler’s judgment was that “what matters is whether the disciplinary process as a whole is fair. Therefore, having a slight or potential defect will not necessarily require that a tribunal finds the dismissal is unfair. However, there is an additional factor that must be borne in mind and that is how serious the procedural defect is.

Misconduct

The EAT referred to the Court of Appeal decision in Taylor v OCS Group Ltd which, to paraphrase, found that if the misconduct in question is serious, a tribunal can more readily find that the employer had acted reasonably in dismissing the employee, despite procedural imperfections. On the other hand, if the misconduct in question is of a less-serious nature, a tribunal may more readily find that the procedural imperfections had “such impact that the employer did not act reasonably in dismissing the employee.”

To put it simply, the more serious the nature of the misconduct of the employee, the less scrutiny the tribunal will place on the procedural fairness of the dismissal.

Disciplinary hearing

It will always be best practice to use members of staff who are impartial and have no previous dealings with an employee, when it comes to investigating misconduct or holding a disciplinary hearing.  However, this is not always practical, especially for smaller employers.

In cases where the employer has limited options for the disciplinary chairperson, if it can show that the process taken as a whole was fair, the risk of a finding of unfair dismissal will be reduced, especially if the allegation is serious.

For more information on any of the issues raised in this article or on employment law in general, contact Kwadwo Boadu in the Leeds Employment Law team by emailing kboadu@lyonsdavidson.co.uk or calling 0113 368 8043.

Posted on Sep 12th, 2017 by Lyons Davidson