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17 June 2016

John-Charles v NHS Business Services Authority UKEAT/0105/15

In the absence of gross misconduct, the dismissal of an employee for a first offence is likely to be unfair if they have not previously received any warnings. This is an established principle of employment law. However, as John-Charles v NHS Business Services Authority UKEAT/0105/15 demonstrates, adequately informing the employee of the reasons for the outcome can often be just as important as the outcome itself.

Facts

In John-Charles v NHS Business Services Authority UKEAT/0105/15, the Claimant, Mr J-C, was an ICT network engineer employed by the Respondent. In October 2012, Mr J-C was facing a disciplinary charge for breaching his employer’s IT policies by copying data onto his personal computer hard drive. He had also then entered a restricted office area for which he did not have sufficient security clearance.

The following investigation concluded there was evidence of gross misconduct and the disciplinary hearing duly took place before a disciplinary officer in March 2013.

However, there had also been a history of failures by the Claimant to follow reasonable management instructions which culminated in a ‘first written warning’, issued by the disciplinary officer on 14 January 2013; which was confirmed in writing to the Claimant. Importantly, an appeal against that warning remained unresolved until the Claimant’s dismissal.

When deciding on the action to be taken following the March hearing, the disciplinary officer changed her mind as to the appropriate sanction when she discovered that Mr J-C had already been given the separate written warning for his inability to accept reasonable management instructions. She was also under the impression that Mr J-C’s appeal had ended due to the time which had lapsed since it was lodged.

The disciplinary officer had initially indicated she would not dismiss Mr J-C and issue a final written warning for his breach of IT policy instead. However, in light of her discovery, she decided that dismissal would be appropriate.

As a result, Mr J-C brought an action of unfair dismissal.

Employment Tribunal

The ET found that the reason for the Claimant’s dismissal was his conduct in October 2012, a potentially fair reason. It concluded that the dismissal for that reason was fair notwithstanding the fact that the Claimant’s appeal against the January first written warning remained pending, something of which the disciplinary officer had not been advised. In any case, the ET concluded that the appeal was unlikely to succeed.

Employment Appeal Tribunal

Mr J-C appealed to the Employment Appeal Tribunal, finding that the dismissal was procedurally unfair and overturning the Employment Tribunal’s decision. Although it was acceptable for the disciplinary officer to have taken the subsequent written warning into account when deciding to dismiss Mr J-C, he should still have been given an opportunity to make representations on that warning.

The fact that the subsequent warning was the subject of an outstanding appeal did not affect the fairness of the decision, as the disciplinary officer had no knowledge that an appeal was being pursued.   The unfairness arose when the disciplinary officer failed to explain the significance of the subsequent warning to Mr J-C and the impact it would have on the disciplinary process. As such, the process was a breach of natural justice.

Comment

There are a couple of interesting points to be made here. Firstly, although it was not applicable to this case, the court confirmed that when a warning was relevant to a decision on a dismissal, and that warning was being appealed, issues of fairness could arise. This suggests that in order to avoid potential claims of unfair dismissal, employers should ensure that all appeals to relevant written warnings should be concluded before action is taken to dismiss an employee.

However, the key lesson to be learned here is the importance of keeping employees completely informed at all stages in a disciplinary. This means fully explaining the reasons for the actions you are taking and ensuring the employee has understood them. If the disciplinary officer had informed Mr J-C that his earlier warning was going to be taken into account when making a decision, it would have provided him an opportunity to make representations. That, it turns out, would have made all the difference, whether he had made any representations or not.

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