This was a claim of unfair dismissal. It was alleged that the claimant had been guilty of gross misconduct in his behaviour towards a vulnerable adult who worked as a volunteer. Aside from the factual disputes, the claimant claimed, inter alia, impropriety based on the fact that the same two people had dealt with the investigation and disciplinary hearing. However the respondent stressed that this was the ‘usual procedure adopted’ and the existence of two different levels of appeal more than protected the claimant. This tribunal recognised the latter procedure as ‘exceptional’ and noted that according to the Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures, the utilisation of separate persons was advisory and not mandatory. The claim was ultimately successfully with a 75% reduction in the award made.

Practical lessons

The tribunal made reference to the fact that the use of the same persons for the investigation and disciplinary procedures was set out in the respondent’s disciplinary procedure. Whilst the respondent attempted to remedy this aspect of its setup by offering two chances of appeal, the tribunal noted that it would have expected such a large organisation to have the resources to find two people to deal with each stage. 

Nevertheless, the tribunal emphasised that there was no real evidence that the procedure ‘tainted’ the disciplinary process and this no doubt contributed towards the finding that the respondent’s procedure was not defective. However, employers are much safer in making an effort to ensure that each stage is dealt with by separate persons. A claimant who makes allegations of a disciplinary process being flawed or biased could well cite a departure from the LRA’s recommended procedure as further evidence of defective procedure.