Don’t Let Procedure Catch You Out.

A number of recent cases across the Employment Appeal Tribunal and Court of Appeal have highlighted the importance of following a fair procedure when dealing with dismissals, especially in relation to the disciplinary and grievance process.

In Tywyn Primary School v Aplin, Mr Aplin, an openly gay primary school head teacher, had sex with two 17 year old males he met on the Grindr app. Following an investigation by the Council, it was determined that there were no criminal or safeguarding concerns. The school however brought their own disciplinary proceedings against Mr Aplin. The investigating officer was found to be overly subjective and selectively relied on evidence, demonstrating unconscious bias. In addition, Mr Aplin was not given access to all the evidence on which the decisions were based. He resigned before the appeal hearing and claimed constructive dismissal.

The Employment Tribunal and EAT were critical of the procedural errors in the disciplinary and appeal process and found that as a result, Mr Aplin had been unfairly dismissed and discriminated against on the basis of sexual orientation.

In Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust, the Hospital’s refusal to investigate a black African surgeon’s grievance rendered his dismissal for incapability discriminatory on the grounds of race. Despite the view that Mr Iwuchukwu’s grievance was out of time and aimed to derail the capability process, the Court of Appeal held his grievance should have been heard regardless. It was accepted that the dismissal itself was unconnected to race but the procedural unfairness related to the grievance gave rise to liability for race discrimination and victimisation.

In Mr M S Radia v Jefferies International Ltd, the Tribunal found Mr Radia’s dismissal to be fair and the allegations against Mr Radia were not disputed. On appeal, the EAT held that whilst there was no error as to the fairness on that point, the employer’s failure to offer an appeal against the initial disciplinary finding made the dismissal unfair.

It can be seen from these cases that where the reasons for a dismissal are fair and not discriminatory, failing to follow a fair and proper process when dismissing can cause the dismissal to become unfair or discriminatory. Employers should therefore be wary of departing from a set procedure and any bias that may arise or might be alleged by doing so. It is advisable to have clear disciplinary and grievance procedures setting out all the appropriate stages, which can then be followed by those involved in an investigation and the hearing of any disciplinary issue or grievance.

The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. © Mundays LLP.

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