In cases where disciplinary action is required, it is always a question of the employer carefully deciding what specific action needs to be taken. Where allegations of misconduct have been made against an employee, case law now suggests that employers must ensure that the correct procedure is followed from the outset to guard against claims of unfair dismissal.
In the Court of Appeal case of Sarkar v West London Health NHS Trust, the Claimant worked as a consultant psychiatrist at Broadmoor Hospital. His employment record for a medical career spanning over 22 years was unblemished. However, numerous complaints were made by colleagues about the Claimant’s ‘harrassing and intimidating’ behaviour over a period of 5 months. The Trust investigated the allegations and the Claimant admitted to acting inappropriately at times. During ongoing investigations, two further incidents occurred. The Trust felt the Claimant’s actions did warrant disciplinary action but was concerned about the effect such action would have on the working relationships within the Claimant’s team. It chose therefore to address the problem using its ‘Fair Blame Policy’, a policy designed to resolve minor performance and conduct issues and at most, allow a written warning to be issued. Under this policy, the Claimant was given a written warning and was relocated to another directorate within the Trust. However, under the policy the situation also had to be reported to the General Medical Council. The Claimant did not agree to this and therefore chose to ‘take his chances’ with a disciplinary hearing. At the hearing it was found that his conduct amounted to gross misconduct and he was dismissed. In response to this, he brought a claim for unfair dismissal.
The Employment Tribunal’s decision, as upheld by the Court of Appeal, was in favour of the Claimant. The Court of Appeal confirmed that the Trust had been inconsistent to start an informal procedure which was not capable of leading to dismissal, and yet later make a finding of gross misconduct based on the same facts. This case acts as a warning to employers to consider very carefully the route they wish to take with an employee, and to follow this through.
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