In Taylor v OCS Group Limited, the Court of Appeal held that a key question, when judging whether a dismissal is reasonable, is whether the disciplinary process, i.e. both the dismissal and the appeal procedure, is fair as a whole. This means that a procedural defect in an earlier disciplinary hearing can be remedied at an appeal and it is not necessary to decide if that defect was cured by a “review” or a “rehearing”.
In Biggin Hill Airport Ltd v Derwich, Ms King (K) was promoted as a temporary supervisor, after which she ‘un-friended’ Ms Derwich (D) and other colleagues on Facebook. That did not go down well with K’s colleagues and D, in particular. The MD became aware that a “Witch” image had been placed on K’s computer as a screensaver. He also discovered that D and two colleagues had used Google to search for images using terms such as “Witch”, “up her a**e” and “up your crack”, and that they had been observed making obscene gestures towards K behind her back. D admitted to saving the Witch image as a screensaver and making the obscene gestures. She was suspended pending a disciplinary hearing which would also consider the search terms used in Google. Following the hearing, four other members of staff were interviewed, but their statements were not disclosed to D before she was summarily dismissed. D appealed by which time she had been provided with the results of the interviews, but her appeal was rejected.
The ET found the dismissal to be unfair because: (i) at the time of the disciplinary hearing D did not fully know the charges against her; (ii) she had not been provided with all the witness statements relied upon by the employer; and (iii) D had insufficient time to prepare her case. The EAT upheld the employer’s appeal. Having referred to Taylor v OCS the Employment Judge then failed to consider whether procedural defects found at the dismissal stage were cured on appeal. It was plain to the EAT that the effect of the internal appeal might have been to cure those deficiencies. The case would therefore be remitted for rehearing before a fresh ET.
This case is a reminder that if further investigation takes place after the disciplinary hearing, any new evidence should be put to the employee before any final decision is made. In addition, those hearing an appeal must consider the procedure that was followed as well as the fairness of the decision, and if there are any procedural defects, these should be rectified at the appeal stage.
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