Employment Review: July 2015 – Appeal saves the day
Miss Adeshina was a principal pharmacist in the Prison Service, part of the NHS Trust. Various allegations of misconduct were raised against her as a result of which she was dismissed. There were a number of procedural failures as part of the disciplinary process including the fact that the disciplining officer’s decision was based partially on matters which had not been put to Miss Adeshina during the process. An appeal was convened in front of three senior managers and the appeal took the form of a re-hearing. The appeal panel upheld the decision that Miss Adeshina’s conduct amounted to gross misconduct and that dismissal was an appropriate sanction.
The Employment Tribunal found that there were flaws in the first stage of the disciplinary process and those flaws were corrected by the appeal process.
The Employment Appeal Tribunal (“EAT”) upheld the Tribunal’s decision: whilst the flaws in the disciplinary process had been serious, they had been remedied by the re-hearing granted on appeal.
Miss Adeshina also complained that the composition of the appeal panel was unfair in that it included one member who had been involved in an operational policy document which was part of the case against the Claimant, and another member of the panel was more junior than the dismissing officer and reported into her.
The EAT took the view that the reality is that senior managers will have involvement in the management of a number of employees and may also sit on disciplinary panels in which those employees might be involved. It would be both unworkable and undesirable for senior managers to completely avoid these connections. Prior dealings with an employee, without something more which suggested bias, would not render the dismissal unfair.
Whilst one of the members of the appeal panel was junior to the dismissing officer, he was only one of a panel of three. The other two members were more senior than the dismissing officer. The panel also benefited from having an independent adviser.
Whilst we would not of course recommend procedural flaws in the disciplinary process, this case is a useful reminder that where conducted properly and by way of re-hearing, in particular, an appeal can remedy such defects.
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