West London Mental Health trust operated a “fair blame policy”, an informal procedure designed to deal with fairly low level breaches of conduct. the Trust had received complaints about Mr Sameer Sakar, a consultant psychiatrist, alleging conduct which was “harassing and distressing” and had the effect of leaving other staff “vulnerable and intimidated”. Following an investigation the Trust commenced its informal procedure. However, while the investigation was continuing Mr Sakar was alleged to have engaged in further inappropriate conduct including making an abusive telephone call, acting aggressively towards a security guard and complaining to a professional body about a colleague who had herself complained about him.
The sanction of unfair dismissal was not available under the informal procedure. However, the process broke down at a meeting at which the Trust’s director said that she would send a report about Mr Sakar’s behaviour to the GMC. There followed a disciplinary hearing which led to Mr Sakar’s dismissal for gross misconduct.
An employment tribunal found that Mr Sakar was unfairly dismissed because the fair blame policy implied that the conduct complained about was relatively minor so that summary dismissal would not be an appropriate response. The tribunal also found that the Trust’s director had frustrated the fair blame process by indicating that she would send a report to the GMC.
The Employnment Appeal Tribunal overturned the tribunal’s decision on the basis that it had not taken all relevant matters into account and by substituting its own view of the matter in place of that of the Trust.
However the Court of Appeal disagreed. the tribunal was entitled to conclude that it was inconsistent for the Trust to use the fair blame policy and then commence a process which led to dismissal for gross misconduct. This course of action was not within the range of reasonable responses available to the employer. In addition, the tribunal was entitled to take the view that the additional matters which arose after the commencement of the fair blame process were of a relatively minor nature.
What would have been the outcome had the fair blame process not been used? It’s impossible to say but it is clear that the decision to use the process was a material factor leading to the finding of unfair dismissal. Employers should be careful to ensure that procedures designed to operate in addition to the ACAS guidelines do not have the effect of creating unforeseen traps.