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What if an investigation is oppressive?
[ch 4: pages 23-24]There is no rule that a “too thorough” investigation will make a dismissal unfair. For example:
An employee pretended to be working at home when he was playing squash at a local leisure centre. His employer, a local authority, set up covert surveillance, videoing him visiting the leisure centre for five successive Thursdays. He was dismissed for gross misconduct. He argued before the tribunal that the dismissal was unfair because the investigation was excessive. This argument failed. The dismissal was fair.
City and County of Swansea v Gayle [2013] UKEAT 0501/12/RN
However, a decision to conduct a more rigorous investigation than normal is not irrelevant. This is because treating someone differently from colleagues (or differently from the way they were treated in the past) could point to discrimination. For example:
After 34 years at the NHS, Elliot Browne became the first black divisional head at Central Manchester University Hospital NHS Foundation Trust. There were large overspends at the Trust. As a result the two white divisional heads were called to an informal “one-to-one” meeting. By contrast, Browne was told his job was at risk and placed on the formal capability procedure. He lodged a grievance alleging race discrimination. The Trust responded by initiating disciplinary proceedings. Browne then invoked the Trust’s Fairness at Work policy, pointing to statistics demonstrating that black employees were far more likely to be disciplined or dismissed at the Trust than white staff. The Trust ignored the evidence and summarily dismissed him. The EAT upheld a finding that the dismissal proceedings were a sham, the investigation was cursory and the Trust had no honest belief in Browne’s guilt or poor performance. He was awarded compensation of £933,000.
Central Manchester University Hospital NHS Trust v Browne UKEAT/0294/11
Excessively rigorous investigation or an abnormally harsh disciplinary sanction can also be a sign that the member is being victimised for exercising (or threatening to exercise) a statutory right. In cases of trade union victimisation, this kind of behaviour can help support a tribunal claim for interim relief. For example:
Mr Chacko, a union rep, was dismissed for bullying, within days of the employer discovering he was organising a recognition ballot, to which the employer was “unequivocally hostile”. The dismissal was likely to be trade union-related, said the tribunal, because of:
• The timing of the dismissal — so soon after finding out about the recognition ballot;
• The evidence of the employer’s hostility to trade unions;
• The “startling” contrast between the slow response to grievances submitted by Chacko and the speedy move to convene a formal disciplinary and dismiss him; and
• The contrast between the employer’s response to past accusations of bullying made by other employees, and its decision to move immediately to dismiss Chacko on this occasion.
An order for interim relief was granted.
London City Airport Limited v Chacko [2013] UKEAT 0013/13/LA
An application for interim relief must be made to the tribunal very quickly — within seven days of the dismissal date. If you think a threatened dismissal could be for trade union-related reasons, contact your union immediately.
Acas early conciliation does not apply to interim relief applications.