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6. GETTING READY FOR THE HEARING
If, following the investigation stage, it is decided that there is a disciplinary case to answer, the employer needs to inform the employee of this.
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 employer’s 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.
Reps should check that the allegations put to the employee at this stage remain consistent throughout the disciplinary process. Where the employer changes the basis of the charge without justification, this can make a dismissal unfair. The following case provides a good example:
Ms Perry held two jobs, each with a different NHS Trust, a practice which is not unusual. 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 Ms Perry to give up her mobile job at Imperial, but she remained well enough to keep up her desk-based job at Ealing. She was paid sick pay by Imperial for the hours she would have spent doing the mobile job. There was no suggestion that she worked for Ealing at her desk-based job during these hours.
When Imperial heard about the job at Ealing, it began an investigation, accusing Ms Perry of fraudulently claiming sick pay while working elsewhere. She was dismissed for gross misconduct.
At her internal appeal, Imperial changed the basis of its dismissal decision. Instead of arguing that Ms Perry was fraudulently claiming sick pay (presumably now realising that this line of argument could not be supported), Imperial changed tack, and argued instead that her failure to disclose her 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 Ms Perry not under any proactive duty to Imperial to keep it 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 in this way.
Perry v Imperial College Healthcare NHS Trust UKEAT/0473/10/JOJ