The Employment Appeal Tribunal (EAT) has ruled that in a case where the owner of a small business was the key witness to the alleged act of gross misconduct of an employee, the employee concerned got a fair hearing despite the fact that the external HR consultants who conducted the disciplinary and appeal hearings could only recommend an outcome to the owner.
The EAT was asked to consider whether the disciplinary procedure used to dismiss the employee had been flawed because the owner had the ultimate decision at both the disciplinary hearing and appeal hearing.
The facts of this case concerned alleged sexual activity between two employees in the workplace outside of working hours, which was said to have been witnessed by the owner. As a result, both employees were dismissed.
The company had only nine employees in total, including the two affected employees, and the MD (owner) had already given his statement as a witness to the misconduct. Therefore the company opted to bring in external HR consultants to conduct the consequent disciplinary hearing and appeal hearing of the male employee. (Interestingly, the female employee was dismissed by the owner, apparently without any process at all.)
The male employee was dismissed and subsequently his appeal against dismissal was rejected, in both cases on the recommendations of the HR consultants. The argument before the EAT was that although the HR consultants had drawn up their own recommendations, the ultimate decision for the disciplinary and appeal outcomes had vested with the owner. Therefore it was argued that the procedure had been flawed as the owner had effectively acted as both the disciplinary and appeal officer.
In overturning the Employment Tribunal’s finding of unfair dismissal in respect of the male employee, the EAT concluded that the size and administrative resources of the employer, compounded by the senior position of the claimant, meant that bringing in external HR consultants had been a reasonable action to take in the circumstances. Although the owner had made the ultimate decision at both the disciplinary and appeal stages, he had followed the recommendations of the HR consultants.
This case reflects the reality that in small businesses run by owner/managers, there is often no-one else who can realistically make decisions on questions of discipline and dismissal. This difficulty was compounded here by the fact that the owner was also the key witness to matters. The EAT therefore, took a common sense view, accepting that the normal principles set out in the ACAS Code of Practice cannot always be applied rigidly to situations like this.