Disciplinary Hearings – Pitfalls For The Unwary7 July 2010
Recent case law and a change to the statutory regime have meant that disciplinary hearings and the policies and procedures that surround them need to be treated more cautiously than may previously have been the case. Our new partner, Hilary Norris explores the issues.
Three particular cases have caught the eye. All involve employees working in the public sector, where disciplinary policies and procedures tend to be contractual and the stakes high, since future careers may be jeopardised by a finding of gross misconduct. However, the lessons have broader applicability.
Compensation can be substantial where policy is contractual
The first case involved a consultant whose contractual disciplinary policy entitled him to have a clinician on his disciplinary panel and a legally qualified chair, neither of which was given. He was also denied legal representation at the hearing. The Trust claimed at a preliminary stage that the breaches would only entitle the consultant to compensation for his contractual notice period of three months. The Court of Appeal however has considered the potential claim much more widely and agreed with the consultant that it was not just a case of how long it would take the Trust to “do it properly” the breaches he had suffered were so severe that they had resulted in his dismissal with a finding of misconduct. This had hampered his ability to find permanent alternative employment, with a potential loss of earnings until retirement of over £4 million flowing from the breaches. Although the case is yet to be heard in full, this preliminary finding shows that breaching a term in the contract that appears simple can have consequences that reach out far into the future.
Extending the concept of “companion”
Another issue, which was partly considered in the previous paragraph as having had a potentially damaging impact on the employee’s case, is the refusal to permit legal representation. A recent Court of Appeal case involved a teaching assistant disciplined for an incident involving a pupil. He was similarly denied the opportunity to be accompanied by a lawyer at his hearings. It’s still fair to say that the rule generally is that a “companion” should be a current colleague or a union representative (the employer doesn’t have to recognise the union, nor must the employee be a member). However, this case suggests that where the outcome for the employee could be so severe that they may not only lose their job but their future prospects, and/or find themselves facing a sanction from a regulatory body, it may well be that fairness requires the employer to allow representation at hearings by a lawyer.
Finally, a warning that employers should be careful to ensure that if they chose a particular route, they stick to it. In the third of our cautionary tales, the employer initially stated it would follow a procedure called the Fair Blame Policy, designed for cases where admitted offences were not considered serious or gross and under which the most serious sanction was a written warning. During this process however, the employee, a consultant psychiatrist, was told that he would be reported to the General Medical Council. The employee complained that this was unacceptable, and the process under the Fair Blame Policy failed, with the consequence that his employer sought to resolve the matter through formal disciplinary proceedings instead. He was found to have committed gross misconduct and dismissed. The Tribunal found this to be unfair, since the employee’s expectations had been governed by the original decision that he would receive no more than a written warning, and it was not open to the employer to switch.
We can see from the first case that having a contractual disciplinary policy can lead to significant cost if there are breaches which might have long-term ramifications. It’s easy to say that if you have a contractual policy, you should stick to it, but you’d be much better off having a policy that permits flexibility and discretion or, better still, change to a non-contractual policy altogether.
Understandably, employers are reluctant to allow lawyers to participate in disciplinary issues, fearing that the whole process will become more formal and legalistic. But is having a lawyer involved in a serious disciplinary hearing such a bad thing? At least the employer has the opportunity to consider all the points which might later be made in a Tribunal, and the lawyer still does not have the right to answer questions on their client’s behalf. It might, however, be wise for the employer to have their own lawyer in the meeting as well, to ensure that the right balance has been struck.
Some disciplinary procedures (e.g. in the healthcare and education sectors) may already envisage the possibility of legal representation, and the employee may even have a contractual right to a lawyer, but even where they do not, employers need to be aware of potential consequences in sectors such as financial services, prisons and those where the employees spend time working with vulnerable adults or children. In all those fields of work, an adverse finding could prevent the employee from working in their chosen trade or profession for good and employers need to be aware of the requirement for overall reasonableness if the employee’s “employability” is at stake.
As for the Fair Blame Policy issue, most employers will not have two such different and distinct strands to their procedures. But those who do must ensure they choose carefully at first, and even when using standard policies, care must be taken to keep the employee’s expectations to a sensible level. Be aware for instance that if anyone in management suggests to the employee he or she won’t be dismissed, this may well bind the hands of the decision-makers who hear the actual case later on.
For further information on employment law issues, or for a fixed-price review of your policies and handbook, contact us on +44 (0)203 178 5361, or alternatively, email us at firstname.lastname@example.org.
 Edwards v Chesterfield Royal Hospital NHS Foundation Trust  EWCA Civ 571
 R (on the application of G) v Governors of X School  IRLR 222
 Sarkar v West London Health NHS Trust  IRLR 508