The claimant was employed as a skip driver and asserted that the respondent’s dismissal of him had its basis in the fact that he brought a personal injury claim against the respondent and a third party in connection with the injuries he sustained in an accident at work. The respondent disputed this, arguing that the claimant was fairly dismissed for dishonesty. This was based on allegations that the claimant had removed goods without permission from the respondent’s premises. Following on from this the Tribunal had to consider whether a full and proper investigation was conducted by the respondent.

Whilst there was a factual dispute about authority to remove goods from the respondent’s land, the disciplinary procedures that followed are noteworthy. The claimant alleged that the process was biased and that a ‘secret channel of communication’ existed between the respondent and the independent consultant who dealt with the claimant’s appeal. 

Due to the fact that the majority of the senior management were all family members of the individual who made the initial allegation of misconduct, the respondent felt it appropriate to appoint a self-employed consultant. The unanimous decision of the tribunal was that the claimant was not unfairly dismissed.

Practical lessons

The respondent cited cogent reasons for its decision to recruit an independent consultant to conduct the appeal hearing and this unquestionably contributed to the finding that the procedure was ‘fair and reasonable’ in the circumstances. It’s axiomatic that when an independent, third-party is drafted in to conduct an appeal procedure then any allegation of bias or unfairness will be harder to sustain. 

It is also clear that a tribunal expects a normal level of communication between a business and such a third party so that information required to conduct the appeal can be provided. As long as this communication is confined to the sharing of relevant and necessary information it is unlikely that a claimant can show the procedure was ‘tainted’ with unfairness.