Veale Wasborough Vizards
07 JUL 2015
Appeal capable of rectifying procedural deficiencies
Solicitor, Veale Wasbrough Vizards
The Employment Appeals Tribunal (EAT) has upheld the Employment Tribunal (ET)'s decision that an employee's dismissal was fair, despite procedural failings at the first stage of the disciplinary hearing.
In Adeshina St George's University Hospitals NHS Foundation Trust and others, Ms Adeshina was employed as a Principal Pharmacist in the Prison Service. She was subject to a disciplinary process due to allegations of misconduct, including unprofessional and inappropriate behaviour and failure to co-operate with a new service change. There were a number of procedural failings in the disciplinary process, namely that the employer appeared to base its decision to dismiss on matters which were not put to Ms Adeshina as part of the disciplinary procedure.
Ms Adeshina's appeal against her dismissal was heard by a panel of three senior managers and an independent advisor to the panel. Ms Adeshina objected to two of the appointed panel members, arguing that one of them was involved in the case against her and the other one was more junior than the original decision maker (and who reported to Ms Adeshina). Following a rehearing, the appeal panel upheld the decision to dismiss.
Ms Adeshina brought various claims against her employer, including unfair dismissal. All claims were dismissed by the ET. The ET held that although there were serious flaws in the disciplinary process, these flaws were able to be corrected by the appeal process and as such the dismissal was fair. The EAT agreed.
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Although the flaws were serious, they were capable of being remedied and had been remedied in the appeal process. In addition, the EAT held that there was no bias in the appeal panel. It noted that in practice it was often the case that senior managers with involvement in the management of employees were also involved in disciplinary hearings and that it would be undesirable for this to be prohibited. In relation to the more junior member of staff, it was noted that even though it was beneficial to have a more senior member of staff than the original decision maker involved in the appeals decision, he was only one of three panel members and there was also an independent advisor.
Employers should make every effort to ensure that a disciplinary procedure is fair from the outset and should be cautious about relying on an appeal process to remedy any shortcomings.
However, this case highlights the importance of an appeal procedure as an opportunity to remedy procedural defects. Where there are allegations that an unfair procedure has been followed, employers should take advice in order to make the best use of an appeal procedure to mitigate against a finding of unfair dismissal against them. This is particularly important in cases where the employee is dismissed.