A warning for employers – do what you say you will do!

The Employment Tribunal recently had to consider an unusual set of circumstances in the case of John-Charles v NHS Business Services Authority. The facts are that in October 2012 Dr John-Charles was alleged to be in breach of his employer’s IT policies. The matter was investigated, but not with any great urgency, and Dr John-Charles was told at the end of February 2013 that the matter would be considered at a disciplinary hearing to be heard on 7 March 2013.

In the meantime, Dr John-Charles had received a written warning in relation to a totally separate incident where he had refused to obey his manager’s instructions. Dr John-Charles was advised by HR that the person holding the disciplinary hearing in March 2013 would not be told about the warning issued to him in January.

The disciplinary hearing relating to the October 2012 incident did start to be heard on 7 March 2013, but then on 13 March 2013 the manager holding the hearing notified Dr John-Charles that she was delaying matters as she thought there may be a health issue for him in continuing at that time. The manager then indicated to Dr John-Charles that she was inclined to issue a final written warning in relation to the October 2012 incident. She then became aware of the other warning issued in January 2013 and decided to dismiss him. This decision was communicated to him on 13 May 2013.

Dr John-Charles instigated proceedings in the Employment Tribunal claiming unfair dismissal. He argued that the Authority should not have taken into account a warning which related to an incident which occurred at a later date than the incident which was being considered. The Tribunal rejected this argument. They held that the Authority was properly able to consider the later warning and that in all the circumstances the Authority’s decision did not fall outside the range of reasonable responses test in determining whether a dismissal was fair or not, and as such they dismissed the claim for unfair dismissal.

Dr John-Charles appealed to the Employment Appeal Tribunal (EAT). There were two grounds of appeal. The first was that the Tribunal should have found the dismissal unfair because they should not have allowed the Authority to bring the January 2013 warning into the consideration of the correct sanction to impose for the October 2012 incident. The EAT rejected this argument and upheld the Tribunal’s decision on that point. The second ground of appeal was that Dr John-Charles had been told that the manager holding the disciplinary hearing relating to the October 2012 incident would not be informed about the January 2013 warning. They were, and this information fundamentally changed the decision which the manager decided to impose. Before they became aware of the January 2013 warning they had indicated that they were minded to issue a final written warning in relation to the October 2012 incident; once they became aware of the other warning they changed that decision to one of dismissal. The EAT held that by misleading Dr John-Charles on this point the authority had failed to accord him natural justice in this regard. They therefore overturned the decision of the Employment Tribunal and substituted a finding of unfair dismissal.

The facts of this case are pretty unusual, but they do make the point that if you tell an employee something about disciplinary sanctions, then you need to make sure you act in accordance with what you have told them!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])

Please note that this update is not intended to be exhaustive or be a substitute for legal advice.  The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.