Handling Dismissal And Disciplinary Issues : Latest Developments

Wake Smith Solicitors 27 October 2015

No matter how experienced you are in HR there is always a new situation to deal with, particularly when it comes to handling potential dismissals. We spend quite a bit of time acting as external counsel for businesses - chatting through the steps you are taking and looking over your shoulder at the letters you draft or drafting some for you. The last few months have been particularly busy for us with regard to hearings as to capability and misconduct. So, here are some recent case law reports of interest we thought we would share. WHOSE DECISION? A significant case recently reported is Ramphal v. Department of Transport. What happened there was that the investigating manager was also appointed to take the decision to dismiss if necessary. He was relatively inexperienced and asked for support and advice from the Human Resources department. In investigating an expense and use of hire car claim he made some preliminary findings that the employee had not acted deliberately; that his explanation for expenditure on petrol were plausible and he made a preliminary decision that the employee was guilty of misconduct but not gross misconduct and should be given a final written warning. However, his recommendations when they were finally made had been very heavily influenced by the in-house HR department and his report had been amended and commented upon. Suffice to say his final decision on the face of it was gross misconduct and dismissal. The Employment Appeal Tribunal were very critical. The Judgment goes to some length in demonstrating the changes that were made between the initial draft investigatory report of recommendation and the final one. The Employment Appeal Tribunal took the opportunity to emphasise that it is not the function of an HR adviser or department to make the decision if another decision maker has been appointed. There is nothing wrong in a decision maker taking advice, for example on questions of law or procedure. But the decision has to be the decision makers and not HR. UNREASONABLE REFUSAL? The whole issue of refusing or otherwise a request for the companion to be someone outside of work continues to rumble on in reported cases. By way of generalisation it still remains the case that; except where there is a contractual provision or potentially a dismissal is a professional career ruining event, employers can still refuse a request to be accompanied by someone who does not fit the statutory criteria. However, there continue to be cases which favour the employee such as Stevens v. University of Birmingham. In that case refusing a request by the employed professor to be accompanied to some of the investigation meetings by someone who not only might have been a useful companion, but might have been able to assist in some of the investigative matters, was a breach of the implied term of trust and confidence between the employer and the employee. It was considered that the University's conduct was objectively unfair and serious enough to undermine the employer/employee relationship. The message continues that it would be unwise for employers to automatically refuse a request by the employee to be accompanied by someone other than a work colleague or trade union representative without considering the issues carefully. SOSR Finally to conclude with bit of knowhow I have found myself reminding several employers over the last few months not to forget the "some other substantial reason" for dismissal as well as say, capability, or gross misconduct as the case may be, in preparing their documentation. There may genuinely be other issues to consider at a gross misconduct or capability hearing. Not all events neatly fit into categories. It can be the case that as well as a finding of gross misconduct, there is also a finding that the relationship of trust and confidence has so broken down between an employer and an employee (or occasionally between work colleagues in a very small organisation) that continued employment is just not feasible. It is difficult to make generalisations, but it always bearing in mind.




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