A Reminder of How Employers Should Deal with Misconduct and Associated Dismissals

Georgia Veitch
Solicitor
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As you may have seen in the news this week, in a recent case, the Court of Appeal (CoA) upheld the Employment Appeal Tribunal’s (EAT) decision that the summary dismissal of an Ofsted Inspector was unfair, after he had been dismissed for touching the top of a pupil’s shoulder and brushing rainwater off his head.

When the claim was initially heard by the Employment Tribunal, the Tribunal had concluded that the dismissal had fallen within the band of reasonable responses open to a reasonable employer, and was therefore fair.  However, the EAT and the CoA both subsequently disagreed and concluded that, in this case, the claimant’s dismissal had been both substantively and procedurally unfair.

The reason for the dismissal 

In reaching its decision, the CoA made specific reference to (i) the employer’s lack of published guidance, and (ii) the absence of any reference to physical contact or touch as an example of gross misconduct in the employer’s disciplinary policy.

Whilst the CoA made it clear that not including particular conduct as an example of gross misconduct did not prevent the employer from summarily dismissing an employee for it, the CoA emphasised that in such cases, the employer should examine whether the employee could have reasonably understood that conduct of this kind might attract the sanction of dismissal.

The disciplinary allegation had also simply referred to ‘touching’ a pupil, an allegation that the CoA found to be vague and insufficient in explaining why touching in this case had been wrong.

The CoA found that it was unreasonable for the employer in this case to have treated conduct that would not normally lead to dismissal as being more serious, on the grounds that an employee had, in their opinion, failed to show adequate remorse or insight.

In assessing whether the dismissal was procedurally fair, the CoA noted that the employer had failed to show the claimant a number of important and relevant documents, including the pupil’s statement, prior to the disciplinary hearing

Key takeaways for employers handling alleged gross misconduct

The CoA decision is a helpful and important reminder to employers of some of the key principles that need to be followed to be able to demonstrate that a conduct-related dismissal is fair.

Employers should remember:

• Where the misconduct alleged, in any disciplinary process arising, is not specifically listed as gross misconduct in the employer’s disciplinary policy, but the employer proposes to categorise it as such, the employer needs to assess whether the employee could have reasonably been expected to know that their conduct may have fallen within the category of gross misconduct;
• The importance of taking time to ensure that disciplinary allegations, as initially set out in the disciplinary hearing invite letter, are clear and detailed enough to explain to the employee why their alleged conduct was so serious in the particular circumstances; and
• The importance of having and maintaining up to date and clear policies and procedures, ensuring that all relevant policies and procedures (as well as investigation paperwork and other relevant documentation and/or evidence) is shared with the employee prior to the disciplinary hearing.

If you have any questions about this case, or about handling employee misconduct or conduct dismissals more generally, or if we can assist with any other employment law matter, please do not hesitate to contact a member of the team on 0141 331 5150.

Topics: dismissal, gross misconduct