A couple of recent unfair dismissal cases have thrown new light on unfair dismissal law.
The first shows that an employer has a wide discretion as to whether to postpone internal disciplinary proceedings when there is an ongoing police investigation into the same allegations.
A prison officer (a Mr Mansfield) was accused of orchestrating violence among prisoners and planting drugs on them. An internal investigation was started in April 2006 and he was suspended on full pay. Eventually, after rather over a year, he was dismissed. He claimed unfair dismissal and won, essentially because the employment tribunal which heard his case considered that the delay in dismissing him was “lengthy and unacceptable”.
The employer, effectively the Prison Service, appealed to the EAT and has won.
What was crucial was the reason for the delay. This was that there was an ongoing police investigation into Mr Mansfield’s conduct. The EAT said “We consider that a decision maker forming a view on whether disciplinary proceedings should be continued alongside a criminal investigation has a wide discretion“. There was no basis for the Employment Tribunal to have held that the delay meant that Mr Mansfield’s dismissal was unfair.
The second case shows that the seriousness of the consequences for the employee of a finding of unfair dismissal can be taken into account in deciding whether an employer’s investigation into alleged misconduct was fair and adequate and therefore in deciding whether a dismissal was unfair.
A Filipino nurse, Ms Roldan, was employed by the Salford Royal NHS Foundation Trust from July 2003 until her summary dismissal for misconduct (mistreating a patient) in October 2007. She brought an unfair dismissal case. She won in the employment tribunal but the Trust appealed and the EAT ruled that the case should be sent back for rehearing. Ms Roldan appealed to the Court of Appeal and has won.
In coming to its conclusion the Court of Appeal pointed out that in deciding whether a ‘conduct’ dismissal is fair or unfair one of the important questions to be considered is whether the employer carried out as much investigation into the matter as was reasonable. In this case this would include taking into account that the employee had given service to the employers over four years, apparently without complaint and, significantly, that there would be a real risk that her career would be blighted by the dismissal if it was found to have been fair. A finding that the dismissal was fair would certainly lead to her deportation and destroy her opportunity for building a career in this country.
Accordingly the Court of Appeal restored the decision of the original tribunal that the dismissal was unfair. You can read more about this case in this blog post.