A fair reason does not make an unfair process fair

An employer can have genuine and serious concerns about an employee’s conduct and still find itself defending a successful unfair dismissal claim if the process used to reach the decision is flawed.

A recent Employment Tribunal provides a useful reminder of exactly that after an NHS Trust was ordered to pay almost £13,000 to a senior manager who had accidentally displayed pornographic material on his phone to a junior female colleague.

The employee had been showing his colleague a video of his daughter when thumbnail images containing pornographic material appeared on the screen. He later apologised, explaining that she had seen something he had never intended her to see.

Several months later, the incident formed part of a wider complaint about his conduct, which included historic concerns about his management style, vaping in the office and interactions with junior colleagues. Following an investigation and disciplinary process, he was dismissed for gross misconduct.

The Tribunal accepted that the employer genuinely believed misconduct had occurred and had reasonable grounds for reaching that conclusion. It also accepted that accidentally exposing a colleague to pornographic material could potentially be regarded as gross misconduct.

The problem was how the employer got there in that the Tribunal identified several shortcomings in the investigation. Historic allegations had been relied upon without properly considering whether the delay in raising them prejudiced the employee. Matters that had previously been dealt with were revisited, and insufficient consideration was given to evidence that did not support the allegations. The dismissal was therefore found to be unfair.

Interestingly, this was not a case where the Tribunal concluded the employee should have remained employed. It found there was an 80% chance that he would still have been dismissed had a fair process been followed. His own conduct was also found to have contributed substantially to the dismissal.

That distinction is important for employers. A Tribunal does not simply ask whether an employee did something wrong. It also considers whether the employer carried out a reasonable investigation, considered the available evidence fairly and followed an appropriate disciplinary and appeal process before reaching its decision.

Sometimes employers become so focused on the seriousness of an allegation that the process begins to feel like a formality.

Investigations should look for evidence that both supports and challenges the allegations. Previous matters should not simply be reopened without good reason, and disciplinary and appeal managers must reach their own decisions based on the evidence available.

In this case, the Tribunal considered there was an 80% likelihood that dismissal would still have happened following a fair process, yet the employer was nevertheless ordered to pay almost £13,000.

Add legal costs, management time and the resources involved in defending an Employment Tribunal claim, and it is an expensive reminder of a simple principle that having grounds to dismiss does not remove the need to get the process right.

Contact us at enquiries@121hrsolutions.co.uk and we can discuss any further queries you may have on this subject.