A recent Employment Appeal Tribunal decision will be of significant encouragement to employers going through disciplinary challenges with employees.
In Adeshina v St George’s the Appeal Tribunal upheld an earlier tribunal decision that an employee’s dismissal was fair, despite serious procedural failings at the first stage of the disciplinary process and despite the employer’s failure to comply with the ACAS code.
Serious procedural failings
The employee was a pharmacist involved in leading a new project to alter the way in which services are dispensed to prisoners. Although her resistance to that project was the context for her dismissal, her manager’s decision to dismiss her was also based partially on issues that she wasn’t even told about during the disciplinary process. Subsequently, the employee appealed the decision.
Failure to comply with the ACAS code
Under the ACAS codes, in the event of this type of appeal, the employer should ensure that (as far as possible) the case is dealt with impartially by someone who was not previously involved in the case and who is more senior than the manager who made the initial decision to dismiss. However, the panel in Adeshina comprised of one partial person, one more junior colleague, one impartial senior manager and an independent advisor, who agreed with the dismissal.
The Appeal Tribunal’s decision
Despite the above, the Appeal Tribunal dismissed the employee’s several claims (for unfair dismissal, wrongful dismissal, whistleblowing, race discrimination and victimisation). It found that despite the serious procedural flaws and failure to comply with ACAS codes, the flaws in the process were corrected by the detailed nature of the internal appeal process.
Employer difficulties with dismissal
Employers often encounter practical difficulties in complying with the ACAS code for appeals. SMEs may find that there is nobody within the organisation of sufficient seniority who is also independent (with external independent advisors too costly) whilst larger businesses may find it difficult to identify somebody who has no prior dealings with the employee, whilst also having an adequate understanding of the business unit in which the employee works. Adeshina demonstrates the ability of the Appeal Tribunal to recognise the challenges that employers of various sizes face, and in doing so their willingness to adopt a realistic approach rather than simply applying the letter of the ACAS code.
Dismissal guidance for employers
Questions an employer should always consider before dismissing an employee include:
Are there adequate grounds for dismissal?
The inability, conduct, continued absence or redundancy of the employee or another ‘substantial’ reason.
Do you have an adequate dismissals procedure and is it being followed?
Although an employee must have been with the company for 2 years before they can bring a claim for unfair dismissal, certain dismissals relating to the following are automatically unfair with no qualifying period, including: discrimination, pregnancy, parental leave, flexible working requests, whistleblowing or TUPE transfer.
Have you checked the employee’s contract?
It is possible to dismiss an employee fairly but still be in breach of contract. For example, does the contract offer the company valuable post-employment restrictions on the employee’s activities, which you will lose? Have you honoured the employee’s notice period or contractual bonuses? Is there a PILON (payment in lieu of notice) clause?
Expert dismissal advice for employers
If you would like advice on dealing with an employee dismissal, are involved and need guiding through a disciplinary process or want to review your Company’s procedures, our expert employment lawyers can help to support and guide you through all employment law issues.
For more information, speak to one of our specialist employment lawyers at our offices in Leicester, Hinckley and Market Harborough, where we will be happy to help you with the advice that you need.