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5 April 2016 0 Comments
Posted in Employment, Opinion

Unfair to stop employee responding to changed misconduct case

Author headshot image Posted by , Partner

In John-Charles v NHS Business Services Authority the EAT has held that it was not unreasonable for someone making a decision on a disciplinary hearing to take account of an existing warning when deciding to dismiss the employee for misconduct even though the warning was subject to an outstanding appeal. A long time had passed since the warning was issued and the Tribunal was entitled to conclude that the decision-maker’s belief that the employee was not pursing his appeal against the warning was a reasonable one. Nonetheless the decision-maker had failed to inform the employee that she was minded to dismiss only when she learned of the warning, and should have given him an opportunity to make representations on this point which, as a result, amounted to a breach of natural justice rendering the dismissal unfair.

This decision is a timely reminder to employers of the importance of keeping employees who are the subject of disciplinary proceedings fully informed of any changes in the case against them and to allow them to make further representations. This is especially where dismissal is envisaged. While the disciplinary manager here had not acted unreasonably in taking account of the previous warning once aware of it, the fact that she failed to inform the employee of this new factor and its effect on the sanction she was considering giving in changing it from a final written warning to dismissal, was considered by the EAT to be unfair.

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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