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Not Every Procedural Defect Will Render a Dismissal Unfair - Guideline Ruling

Deficiencies in a workplace disciplinary procedure will very often render a dismissal unfair – but not always. The Employment Appeal Tribunal (EAT) made that point in finding that a hospital supervisor's dismissal was fair (Greater Glasgow Health Board v Mullen).

The man was accused of behaving in an aggressive and threatening way towards a more junior employee. Following an internal investigation, a disciplinary panel established by his NHS employer upheld the complaint. He was summarily dismissed on grounds of gross misconduct.

After he launched proceedings, an Employment Tribunal (ET) found that the employer held a genuine belief that he was guilty of the alleged conduct. The investigation was reasonable in that all witnesses to the alleged conduct were interviewed and their evidence was properly tested before the panel.

In nevertheless upholding his unfair dismissal claim, the ET detected a number of procedural defects in the disciplinary process: there was, amongst other things, an unacceptable delay in informing him of the allegation he faced. A manager who had previous involvement in the matter should not have formed part of the three-member disciplinary panel.

In allowing the employer's appeal against that outcome, the EAT found that the ET's conclusion was based on a premise that the employer had a different – or real – reason for dismissing him. That premise was inconsistent with its previous finding, unequivocally expressed, that the alleged conduct was the principal reason for his dismissal.

The ET fell into error in failing to recognise that not every defect in a disciplinary process will render a dismissal unfair. Once its inadmissible conclusion that there was some other, real reason for his dismissal was taken out of the picture, the procedural deficiencies identified by the ET had no bearing at all on the issue of whether the alleged conduct amounted to a sufficient reason to dismiss him.

Given its findings as to the reasonableness of the investigation and the employer's genuine belief, the only conclusion to which the ET could properly have come was that the sanction of summary dismissal lay within the range of reasonable responses open to the employer and that his dismissal was fair.