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Unfair dismissal due to changing from informal to the formal procedure

31st March 2010

The Court of Appeal has upheld the decision of an Employment Tribunal that concluded that it was unfair for an employer to apply an informal procedure designed for handling minor problems to certain allegations to then dismiss the employee for gross misconduct based on the same facts.  

In this case, of Sakar v West London Mental Health Trust, the employer received a number of complaints from staff about Mr Sakar, a consultant psychiatrist. The allegations included that he had harassing and distressing staff, and leaving then “vulnerable and intimidated.” In addressing these allegations the Trust decided to use the “Fair Blame Policy”. This is a policy designed to deal with allegations that do not constitute a serious or gross offences. During the course of investigations another allegation was received that Mr Sakar had acted inappropriately again, making an abusive phone call, and complaining about a colleague who had in turn complained about him to her professional body.

At the end of the Fair Blame Policy the Trust’s medical director unexpectedly announced that she would report Mr Sakar to the General Medical Council  (the GMC) (the governing body for doctors). As a result Mr Sakar withdrew from the Fair Blame Policy process. The issue was then addressed through the formal disciplinary process, which resulted in the dismissal of Mr Sakar for gross misconduct.

The Employment Tribunal ruled that Mr Sakar has been dismissed unfairly. It noted that the Trust had decided to deal with the allegations under the informal Fair Blame Policy, which indicated that they did not regard the allegations as amounting to potential gross misconduct. It felt that the same offences could not then be used as gross misconduct being so serious as to lead to summary dismissal. It ruled that the new allegations that arose part way through the internal process would not amount to gross misconduct either individually, or cumulatively. The Employment Tribunal also concluded that the Trust’s medical director had “intentionally frustrated” the initial procedure and then proceeded down the formal disciplinary process. The Trust’s own internal panel that heard the disciplinary hearing had concluded that the later allegations were relatively minor.

The Court of Appeal concluded that it was reasonable for the Employment Tribunal to conclude that the informal process came to an end due to the late condition imposed on Mr Sakar that the trust report him to the GMC. It ruled that it was reasonable for the Employment Tribunal to conclude that it was unfair for the Trust to dismiss when it had started on an informal process into the allegations, and then (when the new allegations were still minor) to dismiss Mr Sakar under the formal process over the same allegations.

This case serves as a reminder of the importance that employers should attach to their disciplinary procedures, and the choice of the formality of the procedure they choose to adopt in dealing with any particular allegations. In particular it reminds employers that they cannot reasonably use a set of allegations under an informal process, and then use those same allegations in a formal dismissal process.

If you need any further advice and help on the issues raised in this article please do not hesitate to contact us.

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