Employment Flash - 26th March 2010

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Applying different disciplinary paths to the same complaints...

Sarkar v West London Mental Health NHS Trust [2010] EWCA Civ 289

S was summarily dismissed for gross misconduct. The ET upheld his unfair dismissal claim. The EAT allowed W's appeal: the ET having failed to take into account relevant matters on the core issue of whether the dismissal in all the circumstances fell within the range of reasonable responses; substituing their view for W's view of S's conduct. The CA overturned the EAT's judgment and restored the ET's judgment.

Having investigated complaints into S's conduct, with his consent W started their 'Fair Blame Policy' internal procedure. FBP was designed for situations which might otherwise be dealt with under the formal disciplinary policy but involved fairly low level breaches of conduct or performance; conduct only such as to justify a first written warning. Matters could be switched to the formal disciplinary policy if at any time in the process they appeared to be more serious. The FBP process broke down when W through its Medical Director informed S for the first time that they would send a report to the GMC about his behaviour. S sat on the GMC's fitness to practice panel. The matter transferred to the disciplinary policy.

The allegations made against S included bullying and harassment, which in relation to one person continued during the investigation and disciplinary process. These were part of the FBP process, but there were other offences which had not formed part of the FBP but did form part of the disciplinary process. The ET had thought these further matters were not blameworthy and did not amount even cumulatively to gross misconduct. The ET relied on W's original decision to use FBP to conclude that it was inconsistent to then find S guilty of gross misconduct based on essentially the same matters.

W's switch to the disciplinary policy was said in argument to have been prompted by the allegation of S's continued harassment and that it had not been pleaded by S so that W had the opportunity of calling the witness to obtain her response to the allegation and therefore the ET were wrong to found upon this matter in coming to their conclusions. The CA identified the fact that the Medical Director had made a witness statement and that the reporting to the GMC was alleged by S in his ET1 to be an about face by W, an allegation to which W had responded in their ET3.

1. If there is more than one 'disciplinary' path to choose from, a respondent will need to be careful when choosing a path with only lesser disciplinary sanctions as that choice may subsequently be evidentially persuasive in an unfair dismissal claim that results from switching to a path with more serious sanctions attaching.

2. If a switch does take place, the disciplinary tribunal must be careful that if it is to find a more serious charge proved it is on the basis of substantive evidence that was not utilised in relation to choosing the lesser path or when utilised in the course of following the lesser path appeared to be of a more serious nature than first thought so justifying a switch to a path with more serious disciplinary sanctions and the subsequent application of those sanctions.

3. Avoid introducing a new condition to a disciplinary process at a late stage [although it is difficult to see other than in relation to a breach of trust and confidence what real difference it made here: if the reference to the GMC had been mentioned at the outset presumably S would either still have agreed to use the FBP or would have declined and W would have utilised the disciplinary policy; the key decision was whether W proceeded with any form of disciplinary procedure].

4. Call the witness who deals with the issue if you wish to dispute what the other side claim.