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Procedural deficiencies rectified on appeal can be fair.
In Adeshina v St Georges University Hospitals NHS Foundation Trust and Others, the EAT has upheld an Employment Tribunal decision that the dismissal of the Claimant was fair where there were serious procedural failings at the first stage of the process which were rectified on appeal. The Tribunal was found to have paid sufficient attention to the nature and extent of the flaws and had been correct to conclude that these had been remedied by the appeal process. The EAT also upheld the Tribunal in finding that the fact that some members of the appeal panel did not meet the standards set out in the ACAS Code did not render the dismissal unfair.
The Claimant was a principal pharmacist in the Prison Service which was part of the St Georges University Hospitals NHS Foundation Trust. Following her resistance to a project in which she was involved, she faced various allegations of misconduct, including unprofessional and inappropriate behaviour and failure to cooperate with, and lead, the service change. The disciplinary proceedings were flawed because the person conducting them based his decision partly on matters which had not been put to the Claimant during the disciplinary process, amongst other failings. She was dismissed for gross misconduct and brought an appeal. The appeal took the form of a re-hearing which upheld the decision to dismiss her for gross misconduct.
When the matter reached the Tribunal, the Tribunal found that the flaws in the first part of the disciplinary process meant that the person conducting it could not have held a reasonable belief in her misconduct. However these flaws were corrected in the appeal process, which had given proper consideration to all the evidence; it thus concluded that the decision to uphold the dismissal fell within the range of reasonable responses so that, overall, the dismissal was fair.
In this case the employer conducted a full re-hearing rather than a review of the disciplinary hearing in which the decision was taken to dismiss. It is not always the case that a full re-hearing will be required to review any procedural defects but if these exist, it is probably the safest approach. In essence all decisions as to the nature of the appeal must relate to the specific circumstances at the time.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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