In all but the smallest organisations, fairness generally demands that different people should investigate allegations of workplace misconduct and preside over disciplinary hearings. As an Employment Tribunal (ET) ruling showed, a failure to maintain that separation of functions is a positive invitation to a finding of unfair dismissal.
The case concerned a care worker who was accused of breaching his employer’s embargo on staff carrying clients in their personal vehicles. He was also said to have breached professional boundaries by swapping phone numbers with a client without authorisation. He denied wrongdoing but, after an investigation and a disciplinary process, he was summarily dismissed on grounds of gross misconduct.
In upholding his unfair dismissal complaint, the ET noted that the same manager had conducted the investigation and chaired an initial disciplinary hearing. She took against him because he challenged the fairness of the process. She wanted to get rid of him and an external professional was inserted to preside over subsequent elements of the process as a buffer or to provide some form of rudimentary justification for his dismissal. She rubber-stamped the professional’s decision.
Any intemperance shown by the employee during the process was understandable given his poor treatment. Because of the circuitous process utilised to justify his dismissal, the ET did not accept that the manager held a genuine belief in his guilt. The far from thorough investigation was one-sided, partial and flawed and there was a steadfast refusal to engage with his arguments in defence.
He was not permitted to state his case properly because his email was cut off following his suspension and he was instructed not to speak to other staff. Overall, his dismissal and his treatment leading up to it fell outside the band of reasonable responses open to an employer of the relevant size and type. If not agreed, the amount of his compensation would be assessed at a further hearing.
Nyamekye v Phase II Care Limited. Case Number: 3307141/2018 V