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6. Getting ready for the hearing
[ch 6: pages 34-35]If, following the investigation, it is decided that there is a disciplinary case to answer, the employer must inform the employee.
The Acas Code says that when notifying the employee of the disciplinary hearing, the employer should provide copies of any written statements and other written evidence. If these are not supplied, they should be requested immediately, and reminder letters/emails sent and kept.
The letter inviting the employee to the disciplinary hearing needs to set out enough detail of the alleged misconduct/poor performance to enable the employee to adequately prepare for the hearing.
For a conduct dismissal to be fair, the employer must clearly put to the employee the actual offence of which they are suspected. For example:
A claimant, Ms Celebri, was suspected of theft of £3,000 from her employer, a school catering facility, but the allegation put to her was that she was responsible for the money going missing. The EAT ruled that the dismissal was unfair, even though the evidence suggested Celebri realised she was suspected of theft.
Celebri v Scolarest Compass Group UK and Ireland UKEAT/0032/10/LA
Reps should check that the allegations put at this stage remain consistent throughout the disciplinary process. Changing the basis of the charge without justification can make a dismissal unfair. Here is a good example:
Ms Perry held two jobs, each with a different NHS Trust. She worked for Imperial College NHS Trust as a community midwife, which required her to cycle between houses and climb stairs, and she also had a desk-based job for Ealing Primary Care Trust, as a family planning nurse. There was no overlap in the hours of the two jobs. Imperial PCT were unaware of the job at Ealing PCT. A chronic knee injury forced her to give up her job at Imperial, but she remained well enough to keep up her desk-based job at Ealing. She was paid sick pay by Imperial. There was no suggestion that she worked for Ealing at her desk-based job during the hours covered by the Imperial sick pay.
When Imperial heard about the job at Ealing, Perry was accused of fraudulently claiming sick pay while working elsewhere and dismissed for gross misconduct.
At her internal appeal, Imperial changed the reason for dismissal. Instead of arguing that Perry was fraudulently claiming sick pay (presumably now realising that this argument was unsustainable), Imperial argued instead that the failure to disclose Perry’s second job was gross misconduct because it deprived Imperial of the chance to save sick pay by redeploying her to a desk-based job.
The EAT confirmed that the dismissal was unfair. Not only was Perry not under any duty to keep Imperial informed of improvements in her knee condition so that it could look for redeployment opportunities, but also, no reasonable employer would have changed its reason for dismissal at the appeal stage.
Perry v Imperial College Healthcare NHS Trust UKEAT/0473/10/JOJ