Jonathan Moreland

The importance of a fair procedure even in cases of unquestionable misconduct

03
Aug

 

Facts of the case

On the 2nd November 2009, Dr. Richard Evans was dismissed by the London Borough of Brent from his position as Deputy Head Teacher of the Copland Community School – a position which he had held for some twelve years.  The reason for dismissal was gross misconduct and this related to his part in financial mis-management, which resulted in Dr. Evans receiving unauthorized overpayments from the School and enabling a third party to also receive unauthorized overpayments.  Following his dismissal, Dr. Evans brought an unfair dismissal claim against the London Borough of Brent.

 

Decision

The unfair dismissal claim was stayed to allow a High Court action against Dr. Evans to reach its conclusion.  It did so, and Dr. Evans was ordered to repay in excess of £46,000 to the School.

Following this Judgment, the Employment Tribunal considered the unfair dismissal claim of Dr. Evans.  It came to light during the Hearing that the disciplinary procedure followed by the London Borough of Brent had been unfair, in that they had failed to adjourn a Disciplinary Hearing.  Nevertheless, the Employment Tribunal struck out the claim, as even though there had been procedural unfairness, any compensation awarded to Dr. Evans would have been nil.  This was on the basis that any compensation awarded to him would have been reduced to nil due to his contributory fault, and also because it would not have been just and equitable in all the circumstances to award him any compensation.  

 

Appeal

Dr. Evans was unhappy with this decision, so appealed to the Employment Appeal Tribunal.  Sitting alone, the Honourable Mrs. Justice Eady DBE found in Dr. Evans’ favour and allowed the appeal.  She concluded that the Employment Tribunal had failed to acknowledge the potential value of a mere finding of unfair dismissal, even without any financial award.  It could not be said that a finding of unfair dismissal would be of no value, and it further could not be said that it was not in the interest of justice to hold an employer to account for procedural unfairness in deciding to dismiss a long-serving employee, even if that could not lead to any financial award. 

The Employment Appeal Tribunal further found that it was not an abuse of process to pursue a claim for unfair dismissal on the ground of procedural unfairness, even though no financial award of compensation would be probable.

 

Lessons for all employers

In summary, it was made clear that there is potential value of a finding of unfair dismissal, as it is a judicial statement that the employer has violated the employee’s right.  This is regardless of whether any financial compensation is awarded to the Claimant.

The clear message for all employers is that even if the misconduct of an employee is abundantly clear, a fair disciplinary procedure must still be followed – if it is not, a finding of unfair dismissal could still be made against the employer.

 

If you require guidance regarding how best to follow a disciplinary procedure, or indeed have any other queries in relation to employment or HR law, please contact Jonathan Morland by email on jmm@swinburnemaddison.co.uk or call him 0191 3755063, or Sharney Randhawa by email at shr@swinburnemaddison.co.uk or 0191 3386513.

 

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