Dr Evans was a deputy head teacher of a school. He was suspended and an investigatory process took place. A disciplinary hearing was scheduled, but he requested a new date because: (a) his preferred companion, who had accompanied him to the investigation meeting, was unavailable; and (b) he did not have time to review the investigation report and annexes (which amounted to around 800 pages) prior to the disciplinary hearing. His postponement request was declined. He was then dismissed for gross misconduct because of serious financial mismanagement. The gross misconduct in question was that he had received unauthorised overpayments from the school and had allowed unauthorised payments to another person. In separate legal proceedings, the High Court found that the Claimant had received over £250,000 in overpayments of which the Claimant was to pay back over £46,000.
The employment tribunal (ET) proceedings had been stayed pending the decision from the High Court. When the proceedings began, it was clear that the sincerity of the Respondent’s belief in the Claimant’s misconduct was vindicated. Albeit, Dr Evans’ employment tribunal claim was not alleging this, his argument relied on the basis that the disciplinary process was procedurally unfair.
The ET nonetheless struck out the claim. Based on the High Court’s findings, the ET found that there was no reasonable prospect of success. They did not, however, find that there was no reasonable prospect of finding an unfair dismissal. It was solely the case that, even if the Claimant was unfairly dismissed, no award would be justified both because the Claimant’s actions were such that he would have been dismissed in any event, even if the process had been fair and, secondly, because it would not be just and equitable to order an award when Dr Evans did not have to repay over £200,000 back to the borough due to it being time barred.
On appeal, the EAT largely agreed with the ET. However, they found that by recognising the possibility of a finding of unfair dismissal, the ET was “acknowledging the importance of procedural fairness inherent in a claim of unfair dismissal. The fact that the ET might conclude that a fair procedure would have made no difference would not detract from that finding”. As such, Dr Evans’ appeal was allowed.
What does this mean for you or your business, and what should you be doing now?
This stresses the importance of following fair procedures even if it seems like a ‘slam dunk’ of a dismissal. Whilst the ET and EAT accepted that he would have been dismissed in any event and so no financial award would be equitable, the matter has been argued at the ET and the EAT and will have been so at no small expense for the London Borough of Brent.
By finding that just having a record that the dismissal was unfair, even though it was justified, we may see many more claims brought for no reason other than to throw a spanner in the works of an ex-employer which may also help in asking for small sums of money from ex-employers on the basis that it will be considerably cheaper for them than paying for the defence of a claim.
To negate this risk, employers should seek to follow their policies to the letter with clear differentiation between investigation and disciplinary and with regard to the particular circumstances at hand. If an individual reasonably requests a change in date for a meeting, then you should seek to accommodate it unless there are overriding reasons not to.
A link to the decision by the EAT can be found here.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.