15th January 2020 ❘

Employment Appeal Tribunal

When finding contributory fault, is the Employment Tribunal required to identify the individual aspects of conduct which it considers contributed to the dismissal?

Yes, according to the Employment Appeal Tribunal (EAT) in Wheeley v University Hospitals Birmingham NHS Trust.

Mrs Wheeley had been employed by the Trust for nearly 20 years when she was notified of a proposed restructure. She responded to this by sending an inappropriate email. It came to light during an internal investigation that Mrs Wheeley was suffering from bipolar disorder and that this had contributed to her conduct. Nevertheless, a disciplinary process found that she was guilty of gross misconduct and she was dismissed.

The Employment Tribunal (ET) decided that Mrs Wheeley had been unfairly dismissed and also that her dismissal amounted to disability discrimination. However, it also decided that she had contributed 25% to her dismissal and so accordingly it reduced the financial award made to her.

Mrs Wheeley appealed to the EAT. Firstly, she claimed that she was not given a proper opportunity at the ET to comment on the issue of contributory conduct. Secondly, she argued that the ET, when deciding that she was guilty of contributory conduct on the basis that she would have responded inappropriately, even if she had not suffered from bipolar disorder, had make a mistake in its approach.

The EAT decided that the ET had made a mistake in that it had failed to identify the individual aspects of conduct which it considered had contributed to the dismissal and had failed objectively to assess the blameworthiness of that conduct. The EAT sent the case back to the ET to reconsider.

Do disciplinary proceedings always require separate investigation and discplinary hearings?

No, according to the EAT in Sunshine Hotel v Goddard.

This case considered whether fair dismissals always require separate investigatory and disciplinary hearings.

The Acas Code states: “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”

The EAT confirmed in its judgment in this case that in order for a dismissal to be fair, there is no legal requirement that an employer always holds separate investigatory and discplinary hearings.

Section 98(4) of the Employment Rights Act 1996 requires an employer to act ‘reasonably’ and so the question of whether a separate investigatory meeting is required in order for a disciplinary process to be fair depends on the specific circumstances of the situation.

However, it is always important that in advance of the disciplinary hearing, the employee knows the allegation against them and enough about the basis for that allegation so as to enable them properly to prepare for the disciplinary hearing.

This is an important clarification for employers and HR professionals on the procedural requirements of discplinary investigations.

Can a trade union undertake a second set of disciplinary proceedings against one of its members based on the same allegation as the first set?

No, according to the EAT in McFadden v Unite the Union.

The union undertook two sets of disciplinary proceedings against Mr McFadden arising out of an allegation that he slapped a woman’s bottom.

The first set of proceedings found that the allegation was proved and amounted to misconduct and Mr McFadden’s subsequent appeal was dismissed by the union. However, when Mr McFadden then complained (under the Trade Union and Labour Relations (Consolidation) Act 1992) to an official called the Certification Officer, it was decided that the specific rule in the union’s rulebook which the union had relied on did not apply to Mr McFadden’s conduct and so the union’s finding against him was overturned.

However, the union then began a second set of disciplinary proceedings against Mr McFadden on the basis of the same alleged incident, but with the union this time relying on three different rules from its rulebook. The union took the view that the legal principle of res judicata did not apply to its disciplinary process. Simply put, this is the idea that a matter which has reached a final decision cannot then be reconsidered on the same issues. The rule is intended to prohibit parties from having a “second bite of the cherry” if they are unsuccessful on the first occasion.

This time the Certification Officer did uphold the union’s finding of misconduct against Mr McFadden and Mr McFadden then appealed to the EAT.

The EAT decided for Mr McFadden, stating that the decision on the first set of proceedings prohibited the union from bringing proceedings about the same allegation a second time, particularly as the union could have relied on the rules cited in the second proceedings when it brought the proceedings the first time around.