The recent case of Adeshina v St George’s University Hospitals NHS Foundation Trust is a timely reminder that where there are procedural flaws in the initial stages of a disciplinary process, those can be remedied on appeal and thereby save an employer from a finding of unfair dismissal.

In the Adeshina case, the Employment Appeal Tribunal (EAT) held that procedural flaws in the first stage of the disciplinary process and the employer’s failure to comply with the ACAS Code of Practice and Guidance in respect of the composition of the appeal panel did not result in an employee’s dismissal being unfair.

Disciplinary proceedings were instigated against the Claimant who was dismissed for gross misconduct. The Claimant appealed.

The ACAS Code of Practice on Disciplinary and Grievance Procedures suggests that any appeal should be dealt with impartially and, wherever possible, by a manger who has not previously been involved in the case. In addition, the ACAS Guide suggests that, wherever possible, employers should ensure the appeal is heard by someone senior in authority to the person who took the original disciplinary decision and, if possible, someone who was not involved in the original meeting or decision.

The appeal panel in the Adeshina case comprised three senior managers and an independent advisor to the panel was appointed. The Claimant objected to the appointment of one of the members of the panel, Ms Ludlam, because she had been involved with the creation of a policy document that formed part of the case against the Claimant. The Claimant also objected to the appointment of another member, Mr James, because he was more junior than Ms Ashworth (who had made the initial decision). The appeal took the form of a full re-hearing. The panel upheld the decision of Ms Ashworth, and held that dismissal was the appropriate sanction.

The Claimant brought various claims in the Employment Tribunal (ET), including a claim for unfair dismissal. Whilst the ET found that the disciplinary decision was procedurally flawed in that it was based on matters which had not been put to the Claimant during the disciplinary process, and that certain factors did not provide reasonable grounds for an adverse finding against the Claimant, the dismissal was not unfair because the deficiencies at the dismissal stage were cured by the appeal process.

The Claimant appealed to the EAT, arguing that the procedure had been so seriously flawed that it was not capable of being remedied on appeal and/or that only a perfect appeal process could remedy it. The EAT dismissed the Claimant’s appeal. One of the issues that the EAT was asked to consider was whether the ET had misdirected itself on the question of fairness, having regard to the whole disciplinary process, including the appeal. It was held that, when looking at the question of fairness, the ET was bound to consider the process overall. The ET was entitled to conclude that procedural flaws at the first stage of the disciplinary process did not necessarily mean that the position could not be remedied on appeal, having regard to the nature and extent of the flaws at the earlier stages. Although the flaws may have been serious, they were remedied by the full re-hearing on appeal.

With respect to the composition of the appeal panel, the EAT concluded that ACAS’ guidance must be considered in the overall context of the matter and concluded that, in this case, Mr James was only one member of a panel of three; the other two members were more senior than Ms Ashworth. In respect of Ms Ludlam’s prior involvement, it was noted that this was no more than a minor involvement some year and a half earlier which she had forgotten. The correct approach was to consider, in the round, the composition of the appeal panel and the way it went about its business.

Whilst the judgment suggests that there may be an opportunity for employers to remedy defects from a previous disciplinary hearing, particularly where a full re-hearing is offered, the tribunal will be required to assess the fairness of the process as a whole. The decision also appears to recognise the difficulties that employers may face in selecting an appeal panel, in that it may be difficult for certain organisations to find someone of sufficient seniority to hear the appeal. Nevertheless, impartiality is key; the ACAS Guide provides that, for small organisations where a more senior manager is not available, another manager should (if possible) hear the appeal. Clearly each case will turn on its facts, and employers are reminded to tread carefully when arranging and conducting any appeal hearing.

If any issues arise in respect of the above or if you have any concerns, please contact Linky Trott or any member of the Edwin Coe Employment Team.

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