A fair process when dismissing

Employers are hopefully aware of the requirement to follow a fair process when pursuing disciplinary proceedings, especially when the outcome may result in the dismissal of the employee in question.

The Employment Appeal Tribunal (EAT) recently considered whether an employer had unfairly dismissed an employee by failing to follow a fair procedure (in the case of Radia V Jeffries International).  The facts of this case were rather unique.  Mr Jeffries, the Claimant, pursued a tribunal claim against his employer, a regulated financial services company, whilst still employed as the Managing Director.  In its judgment, the Employment Tribunal found that the Claimant lacked credibility and found him to be evasive.  Having received this judgment, the employer suspended the Claimant and initiated disciplinary proceedings on the basis that he was not “fit and proper” for his role as the Managing Director.  No investigation was pursued prior to the disciplinary hearing.  Instead, the employer relied on the findings of the tribunal regarding his character.  Following the dismissal, no right of appeal was offered. The Respondent argued that an appeal would have made no difference to the outcome.  Mr Jeffries pursued a further Employment Tribunal claim for unfair dismissal which was unsuccessful.

On appeal to the EAT, the judge considered whether the dismissal was within the range of reasonable responses based on the fact that no investigation was held and no appeal option was made available.  In its judgment the EAT found that an investigation is not a statutory requirement or even recommended in the ACAS Code of Conduct, and so the dismissal was fair in this respect.  However, the lack of appeal process did make the dismissal unfair as this was contrary to best practice, a breach of the ACAS Code and contrary to the employer’s own procedure. The Claimant therefore succeeded in his appeal on this point, successfully securing a finding of unfair dismissal.

As demonstrated in this case, Tribunals will consider whether a dismissal is fair and whether a fair and proper procedure has been followed. Regardless of this outcome, an investigation is likely to form part of the evidence in indicating whether this has taken place.  Furthermore, it can also help to provide a sense to the employee that a fair procedure was followed, thereby (hopefully!) limiting the chance of tribunal proceedings in the first place.

Caroline Oliver, Senior Solicitor

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