Following a disciplinary hearing, further negative information has come to light about the employee. According to the Employment Appeal Tribunal, can it be taken into account when determining the appropriate sanction?
In October 2012 the employer alleged that Dr John-Charles (JC) was in breach of its workplace policies. This matter was investigated (but not with any great urgency on the employer’s part). Towards the end of February 2013, JC was informed that in respect of this matter there would be a disciplinary hearing on 7 March 2013.
During the employer’s investigation relating to the October 2012 allegations, JC received a written warning about another unrelated matter. This happened in January 2013 and was in relation to a separate incident where he had refused to obey his line manager’s instructions. JC was advised by the employer’s HR department that the person chairing the disciplinary hearing on 7 March, relating to the first matter, would not be told about the warning that had been issued to him.
At the disciplinary hearing, the chairperson told JC that she was “inclined to issue a final written warning”. However, before a final decision was made regarding a disciplinary sanction, the chairperson became aware of the other warning issued to him in January 2013. This was then taken into account (without JC’s knowledge) and the chairperson decided that, as a result, the appropriate disciplinary sanction was now dismissal. JC was informed of this on 13 May 2013.
JC then claimed unfair dismissal at the tribunal where he argued that the employer should not have taken the written warning into account as it related to an incident which had occurred after the allegations being considered. When the tribunal rejected this argument he appealed to the Employment Appeal Tribunal (EAT).
The EAT noted that JC had specifically been told that the chairperson of the disciplinary hearing relating to the October 2012 allegations would not be informed about the written warning he had subsequently received. However, they were and this fundamentally altered the disciplinary sanction which was imposed on him. The EAT held that by “misleading” JC on this issue the employer had failed to accord him natural justice and his dismissal was unfair.
Employers need to learn from this case:
Tip 1. – If you tell an employee something about your disciplinary procedure, e.g. other matters will not be taken into account, don’t deviate from what you’ve told them. In a nutshell, that’s asking for trouble.
Tip 2. – If you want to consider new matters before making a disciplinary decision, the employee must be notified of these precisely and given a full opportunity to respond. If this doesn’t happen, a dismissal will only ever be unfair because it breaches the rules of natural justice. You can take the new information into account but first, you must inform the employee this is going to happen, disclose the further information in its entirety and give them a full opportunity to respond to it.
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