Employment law moves more quickly than any other legal area I know. Last week I presented three separate employment law updates and by the end of the week one of the cases I mentioned had been overturned by the Court of Appeal.
The case is Sarkar v West London Mental Health NHS Trust and if you were on one of the courses you may remember that that was the case where the employer originally dealt with bullying allegations by invoking their informal ‘fair blame procedure’ but then decided that following further allegations and the employee refusing to accept the outcome of the procedure they moved to the formal procedure and dismissed him. The EAT reversed the tribunal’s finding of unfair dismissal and held that the employer was entitled to act in the way that it did.
To be honest I didn’t think of it as a particularly important or controversial case – I mainly included it to take the mickey out of the employer for calling their informal procedure the ‘fair blame procedure’ which is, lets face it, a rubbish name. However, I also saw the case as a useful pointer that the employer can explore the informal resolution of disciplinary issues without forfeiting the ability to pursue a formal procedure if the informal one does not work out.
However the Court of Appeal ruling has cast doubt on that. The Court held that the tribunal were entitled to take the view that by starting out with the fair blame procedure the employer had demonstrated that they regarded the conduct as rather minor, justifying no more than a written warning. Contrary to the EAT’s view that the new allegations were important, the Court of Appeal held that actually they were merely further incidents of a similarly minor nature (one of them involved the claimant in bullying someone else by deliberately parking in the wrong place!). The tribunal was also entitled to find that the reason the fair blame procedure failed was that the employer threw in a requirement at the last minute that the employee’s conduct should be referred to the General Medical Council.
On that basis the Court of Appeal held that the tribunal was entitled to find that the dismissal was outside the band of reasonable responses. So despite the fact that the formal disciplinary procedure was followed in a fair way, dismissal was simply too harsh a penalty.
It’s quite rare to get a finding of this sort. Usually unfair dismissal claims turn on the fairness of the procedure followed rather than whether dismissal was an appropriate penalty. However the tribunal in this case do seem to have directed themselves very carefully.
If I were to draw an overall lesson from the case, I would say that if an employer starts to use an informal procedure following allegations of bullying or other misconduct then that would suggest that dismissal is not an appropriate response to that behaviour. However if in the course of the informal procedure the employer genuinely discovers new facts which cast a significantly different light on the misconduct alleged then it is still open to the employer to end the informal procedure and begin formal action. Whether it would be fair to dismiss in those circumstances depends on whether the seriousness of the new facts discovered moves the conduct from being minor to something that puts dismissal within the band of reasonable responses.
As far as I’m aware, everything else I said last week is still right!
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