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Would Your Workplace Disciplinary Procedures Withstand ET Scrutiny?

Workplace disciplinary hearings should always be conducted on the assumption that the fairness of the procedure followed is in future likely to be rigorously tested by an Employment Tribunal (ET). A case on point concerned an adult education worker who was sacked after she shouted at a client (Kenworthy v Think Employment Ltd).

The woman worked as an engagement manager with a company that provided adult education services to clients, many of whom were homeless, had language problems or were otherwise vulnerable. The company's code of practice stated that its staff were expected to treat clients fairly, politely and with respect.

She was suspended after one of her colleagues sent an email to the company's management complaining about her alleged behaviour. The most serious allegation was that she had shouted at a client in front of three others. Following an investigation and a disciplinary hearing, she was summarily dismissed on grounds that she had behaved in an unprofessional and unacceptable manner.

After she launched proceedings, an ET found on the balance of probabilities that she could be unfriendly, unapproachable and impatient in her dealings with clients. The manager who presided over the disciplinary hearing genuinely believed, on reasonable grounds, that she was guilty of misconduct. The company thus had a potentially fair reason for dismissing her.

Upholding her unfair and wrongful dismissal complaints, however, the ET found that the internal investigation into her conduct fell outside the band of reasonableness. The scope of the investigation had been expanded beyond the allegations made in the email and neither the email writer nor any of her other colleagues had been interviewed concerning specific alleged incidents.

The procedure followed during the disciplinary hearing was also unreasonable. The allegations she faced were never specifically put to her and she was given no opportunity to respond in a neutral way. The outcome was pre-determined in that the presiding manager had decided in advance that she was guilty of gross misconduct. She was thus placed under the burden of proving her innocence.

The ET found that she did shout and behave inappropriately in relation to the client and that she thereby contributed to her dismissal. Had fair procedures been adopted, there was evidence that could have led to her being fairly dismissed. The amount of her compensation – which would be assessed at a further hearing, if not agreed – would be reduced in accordance with those findings.