Using Disciplinary Procedures

A recent decision of the Court of Appeal demonstrates the importance of an employer not rushing into a decision as to how he should handle a disciplinary issue before he has sufficient information to make a properly-informed decision. Once such a decision has been taken, the employer may find that his hands are tied and his options limited. The case also vividly illustrates how opinions may differ as to the application of what is known as the reasonable responses test.

In Sarkar v West London Mental Health NHS Trust, Dr S was a consultant psychiatrist employed by the Trust. A number of his colleagues made allegations of bullying and harassment against him. After an initial investigation, the Trust agreed to deal with the matter under its Fair Blame Policy (the FBP). This was designed to deal with less serious matters and, under its terms, the most serious sanction that could be imposed was a written warning. During the FBP procedure several additional matters came to light. The procedure broke down when Dr S refused to agree to the Trust's Medical Director sending a report about his behaviour to the General Medical Council (the GMC), where Dr S sat on the Fitness to Practise panel. His case was then moved to the formal disciplinary policy and he was summarily dismissed for gross misconduct. Dr S's internal appeal was unsuccessful and he issued proceedings for unfair dismissal.

The key issue was the application of the reasonable responses test. This states that when hearing an unfair dismissal claim, an Employment Tribunal must not simply second-guess the employee’s decision to dismiss by asking itself if it would have dismissed the employee. Rather, it must decide if the employer’s decision fell within the range of reasonable responses to the employee’s conduct. In the present case, the Employment Tribunal decided that it did not. It ruled that in agreeing to use the FBP, the Trust must have taken the view that the conduct had been of a relatively minor nature. The Trust acknowledged that the additional matters were also of a relatively minor nature. The Tribunal also took the view that the Trust's Medical Director had intentionally frustrated proceedings under the FBP by her belated requirement for a reference to the GMC.

The Employment Appeal Tribunal (the EAT) allowed the Trust’s appeal. It ruled that the Employment Tribunal had unduly focused its attention on the initial use of the FBP and, in the EAT’s view, had committed the cardinal sin of substituting its own view for that of the Trust’s. However, the employee successfully appealed to the Court of Appeal. Essentially, the Court endorsed the way in which Employment Tribunal had dealt with the case.

Does this decision mean that once an employer has decided to use a particular procedure, he is stuck with it? Almost certainly not. In this case the FBP provided that a case could be transferred to the formal disciplinary procedure if it became apparent at any stage that the alleged misconduct was more serious than originally envisaged. Here the additional matters were of a minor nature and could have been dealt with under the FBP. Dr S’s claim may well have failed had the Trust been able to point to show that clear evidence of more serious wrongdoing had emerged after it had taken the initial decision. Perhaps one lesson to be drawn from the case is that it is better to keep things simple. The more complex the disciplinary procedures, the more there is scope for things to go wrong.

If you would like to know more about the implications of this case, please contact Gareth Pobjoy or Nick Crook.

Filed: 03/09/2010 14:01:49