Unfair dismissal: the importance of a fair procedure

21st September 2020

The first consideration in an unfair dismissal case is whether the employer had a fair reason for dismissal. There are five potentially fair reasons for dismissal: conduct, capability, redundancy, breach of a statutory duty or obligation and “some other substantial reason”. Once the reason for dismissal has been established, an employer must go on to follow a fair process prior to reaching any decision to dismiss an employee.

An unfair dismissal claim can be established when either an employer has failed to identify a fair reason for the dismissal and/or has failed to follow a fair process leading up to the decision to dismiss.

As demonstrated in the recent case of Evans v. The London Borough of Brent, it is possible for a dismissal to be “procedurally unfair” even where there is no prospect of the claimant recovering compensation.

The facts of the case

Dr Evans was employed as a deputy head teacher for 12 years. The school investigated allegations of misconduct and financial mismanagement by members of the senior management team, including Dr Evans. This mismanagement had resulted in Dr Evans and another individual receiving unauthorised overpayments from the school.

Dr Evans was invited to a disciplinary hearing to consider allegations of gross misconduct. He asked for the hearing to be postponed so he could be accompanied by his chosen companion (his sister, by whom he had been accompanied previously) and to review, in detail, the comprehensive investigatory evidence (which was over 800 pages).

The request was refused by the school and the disciplinary hearing took place in Dr Evans’ absence. He was subsequently dismissed for gross misconduct and issued a tribunal claim for unfair dismissal.

The tribunal’s findings

Dr Evans’ claim in the tribunal was stayed pending criminal and High Court proceedings.

The High Court action resulted in Dr Evans being ordered to repay more than £46,000 to the school (with another £200,000 being deemed time barred and irrecoverable).

The tribunal struck out the claim for unfair dismissal on the grounds that there were no reasonable prospects of finding that the school did not have reasonable belief in the misconduct, or that dismissal was outside the range of reasonable responses.

Although the disciplinary process was, arguably, procedurally unfair, this ground was also struck out because any compensation due to Dr Evans would inevitably be reduced to zero (either as a Polkey reduction or due to contributory fault). Also, in view of the irrecoverable overpayments, the tribunal determined that it would not be just and equitable to make any payment of compensation to Dr Evans.

Given that Dr Evans had no prospect of any recovery of compensation, the tribunal was of the view that the interests of justice did not warrant the claim continuing.

Appeal to the Employment Appeal Tribunal (EAT)

Dr Evans appealed to the EAT and was successful in his appeal.

The EAT held that the tribunal had failed to acknowledge the potential value of a mere finding of unfair dismissal, even without a financial award. Further, it could not be said that such a finding would be of no value, or that it was not in the interests of justice to hold an employer accountable for procedural unfairness in deciding to dismiss an employee.

The case has now been remitted to a different tribunal for reconsideration on the issue of procedural unfairness (some 10 years following Dr Evans’ dismissal).

The importance of this case for other schools

This case serves as a useful reminder to schools to ensure that they follow a fair and reasonable process before reaching a decision to dismiss an employee. In particular, it is important that an employee has an opportunity to state his/her case at a disciplinary hearing and is afforded the opportunity to attend with a suitable companion.

In this case, had the school postponed the hearing and allowed Dr Evans to attend with his sister for support, it could have saved the time and resources associated with tribunal proceedings.

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