Case in Focus

R became aware of allegations about A's managerial style – a systematic course of sustained bullying and threatening behaviour towards his subordinates – and commenced a thorough investigation culminating in A's eventual dismissal for “gross breach of discipline”. There were fundamental flaws in the disciplinary procedure carried out.
The original disciplinary manager had allegedly been “nobbled” by higher managers sympathetic to A, to persuade him to award a written warning only. Although this information had come to the attention of human resources beforehand, a decision to remove him from the disciplinary process was not made until some 18 days after the manager in question had reached that decision. Although he was satisfied that some of the allegations were proven, he decided that the appropriate sanction was indeed a written warning.
The manager appointed to carry out the disciplinary hearing in his place reached a decision to dismiss A and drafted the dismissal letter before affording him the opportunity to address her. A appealed.
The employment tribunal (ET) held that the appeal against dismissal was carried out fairly. There was a very full rehearing of the evidence. A had been provided with the bulk of the witness statements some two weeks before the first appeal hearing. He had been given every opportunity to present evidence and to state his case. In the circumstances, the appeal cured the earlier defects in procedure and the dismissal was fair. All three limbs of the Burchell test were satisfied.
ET went on to hold that the removal of the original disciplinary manager from the disciplinary process was a breach of contract. The contract of employment was construed narrowly and held not to contain a power to remove and replace the person chosen to conduct the contractual disciplinary process once that person had accepted the appointment. An award of agreed damages was made.
Comment: The case is an excellent example of the principle that a fair and thorough appeal hearing can cure even the most fundamentally flawed disciplinary process: Rowe Radio Rentals [1982] IRLR 177
Of greater interest is the ET's ruling that the removal of the manager with responsibility for a disciplinary decision (on the grounds that he may have been subjected to improper influence) constituted a breach of the contract of employment. The facts were unusual and the contract did not make any express provision for the situation. The ET did not hold that the disciplinary officer could never be removed in such a situation, but that on the facts of the case, the decision to do so was not made in good faith and was made in breach of contract.
Further points canvassed but not expressly decided were whether R should have informed A or the subsequent disciplinary managers of the decision not to dismiss reached by the original disciplinary manager. It is difficult to see on what basis either should have been done. The point at issue for a disciplinary officer is whether the employee has committed acts of misconduct, not whether he has been treated fairly in the subsequent process. Similarly, the views of someone who has previously considered the evidence are not, it is submitted, matters that the ultimate decision-maker should have access to. The decision is his alone to make on consideration of the evidence of misconduct obtained in the course of the disciplinary process.
Milan Dulovic is a barrister at 2 Gray's Inn Square Chambers and acted for United Biscuits