Disciplinary and dismissal cases update

hrlaw takes a look at three recent cases which covered issues as diverse as an employer’s ability to re‑discipline for the same offence, whether an employer can withhold a payment in lieu of notice if it discovers gross misconduct after the dismissal and whether the human right to a fair trial comes into play in disciplinary and dismissal hearings.
 

Right to be accompanied at a disciplinary/dismissal hearing

• Whether an employee’s right to be accompanied at a disciplinary/dismissal hearing should be extended in certain cases to include a right to be accompanied by a lawyer has been a live issue in the courts the past few years. 
• The arguments in favour have centred on the right to a fair trial under the European Convention on Human Rights and have arisen in cases where the outcome of a disciplinary decision might affect the individuals ability to continue to practice his profession.  
• In a case involving a hospital consultant (Mattu v University Hospitals of Coventry and Warwickshire NHS Trust) the Court of Appeal ruled that the right to a fair hearing was not engaged during disciplinary proceedings that led to the consultant’s dismissal.  The Court indicated that comments in the earlier case of Kulkarni were wrong.  Kulkarni had suggested that the right could be engaged (together with a right to legal representation) where the outcome could affect the individual’s ability to practice his profession.

Comment:

• It is now very difficult for employees to argue that they have a right to accompanied by their lawyer at any disciplinary or dismissal meeting.  However, the way the case law has been left, it is conceivable that on a future occasion a court will find that the right to a fair trial is engaged where the outcome of disciplinary proceedings will have a substantial influence on the decision of a professional body to bar the individual from practising his profession. 

Withholding payment in lieu of notice after discovery of gross misconduct

• Employment contracts often give the employer an express right to terminate employment with a payment in lieu of notice.  In Cavenagh v William Evans Ltd, the employer company made Mr Cavenagh redundant, said it would pay him in lieu of notice but then discovered he had transferred £10,000 of company money to his pension fund, money to which he had no entitlement.  It refused to pay Cavenagh in lieu of notice and Cavenagh sued the company for the payment.
• The County Court said the company was entitled to rely on the knowledge of the misconduct it acquired after the dismissal and was entitled to not pay in lieu of notice given the misconduct would have justified summary dismissal.
• However, the Court of Appeal said that the company had chosen to pay in lieu of notice and that this gave rise to a debt to Cavenagh from which the company was not released by discovering facts which could have enabled it to terminate his employment without notice.  The court said that it was part of the risk the company took, in the same way that it took a risk that he may have found a new job elsewhere during the notional notice period.

Comment

• This decision will be surprising to many.  Despite the outcome, the court clearly recognised the unattractive nature of the claim and indicated that the outcome turned on how the company’s case had been pleaded.  The company had failed to run a number of possible arguments or counterclaim against Cavenagh.  Had it done so, the outcome may have been quite different.

Re-disciplining for the same offence

• Employees who are put through a disciplinary procedure are not usually put through a second procedure for the same offence.  However, in Christou & Ward v London Borough of Haringey, a case arising from the death of “Baby P” in 2007, that is exactly what happened.  After the first procedure, two employees received written warnings, after the second procedure they were dismissed.
• The Employment Appeal Tribunal held that the dismissals were fair in the circumstances.

Comment

• This case should not be viewed as creating a general rule that it is permissible to discipline employees twice for the same offence.  The Employment Appeal Tribunal warned that “the circumstances in which it may be held to be reasonable for an employer to change their view as to the appropriateness of a disciplinary sanction previously imposed and to embark on second disciplinary proceedings on the same facts are likely to be extremely rare”.