If an employer does not follow a disciplinary procedure correctly, an employment tribunal is entitled to find that any subsequent dismissal is unfair. A key point for any employer is to make sure it carries out as much investigation into the disciplinary matter as it is reasonable to do, before deciding whether or not to dismiss.

The Employment Appeal Tribunal recently overturned an employment tribunal’s decision that an employer had breached the “reasonable investigation” requirement of a fair dismissal by including details of two previous incidents (which had not been treated as disciplinary matters at the time) in its investigative report. The employee was dismissed for gross misconduct after a third serious incident which threatened patient safety. Although the tribunal found the previous incidents were relevant and that dismissal was a reasonable decision by the dismissing officer, it considered it was unfair to include information about the previous incidents. The EAT considered this was irrational. It was relevant that the employee had not been given any indication of whether the previous incidents would be taken into account if there was a repeat.

Comment

The case shows that even in circumstances where the employee’s actions amount to serious, or gross misconduct, an employer must be careful to get the investigation right, or risk being challenged on its decision.