Case law: No limit on extent to which fair appeal can cure defects in original disciplinary process
Employers will welcome a ruling that the fairness of the appeal stage can always cure unfairness in the previous stages of a disciplinary process, provided the overall result is fair.
This update was published in Legal Alert - August 2016
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A garage worker was dismissed for gross misconduct, after an initial disciplinary process and a subsequent appeal. He claimed unfair dismissal.
The Employment Tribunal found that the initial disciplinary process was substantively and procedurally unfair. However, the worker's appeal was scrupulously carried out. The person conducting the appeal interviewed relevant staff, considered the business's disciplinary policy and the worker's behaviour, and whether it amounted to gross misconduct - and made his decision impartially and fairly.
The Tribunal ruled that the ultimate decision to dismiss was made, on behalf of his employer, by the person who carried out the appeal. The person conducting the first stage played no part in it. As the appeal was fairly carried out, this cured the defects at the first stage of the process and the dismissal was therefore fair.
The worker argued that the unfairness of the initial stage was such that the whole process should be treated as unfair. The fairness of the appeal did not cure the lack of fairness at the first stage.
The Employment Appeal Tribunal upheld the dismissal, ruling that there were 'no limitations on the nature and extent of the deficiencies in the first stage of the process that can be cured by a thorough and effective appeal'. Despite the lack of a proper investigation or enquiry at the initial stage, the subsequent appeal had been 'sufficiently robust' to provide the overall fairness that the law requires.
- Despite this ruling, employers should ensure that all parts of a disciplinary process are thorough, and reasonably conducted, or risk an argument that the fairness of an appeal is not sufficient to cure unfair elements earlier in the process
Case ref: Khan v Stripestar Ltd UKEATS/0022/15/SM
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