procedureunfair dismissal

If ever there was an example of the need to follow correct procedures, even in what appear to be the most glaringly obvious situations, the Employment Tribunal decision in Sidhu v Rathor t/a Allenby Clinic/Northolt Family Practice is a good case in point.

It used to be the case that, in very obvious cases such as detected theft or violent assault, a summary “on the spot” dismissal for gross misconduct without investigation was thought to be appropriate. However, for a number of years, that has increasingly become a very risky course of action. When investigations are carried out, they must be thorough, adopt a fair procedure and, in particular, afford a right to reply.

Ms Sareet Sidhu commenced employment with Dr Sangeeta Rathor in February 2013. She was summarily dismissed for gross misconduct as notified in a letter dated 28 November 2017.

Dr Rathor was a sole practitioner GP at the Allenby Clinic until 2014 when she took over the Northolt Family Practice where Ms Sidhu and her mother worked as assistant practice manager and practice manager respectively. By 2017 Ms Sidhu had become practice manager and her mother was the business manager. All three got on very well, including socialising outside of work, until mid-2017. when there was a major falling-out. Dr Rathor accused Ms Sidhu and her mother of making “veiled death threats”, as well as engaging in “intimidating conduct and bullying behaviour, forgery and misappropriation/theft of over £100,000 from the business”. In turn, Ms Sidhu accused Dr Rathor of drinking alcohol at work, treating patients when under the influence of alcohol and signing blank prescriptions, as well as prescribing medication for the benefit of family members.

The tribunal found that all three were unreliable witnesses in circumstances in which the truth would go against their cases. Nonetheless, there were clear records concerning what Ms Sidhu was paid. When working for Dr Rathor’s predecessor, her salary was £24,008.40, based on an hourly rate of £12.15 and 38 hours per week. By checking an external payroll service it could be shown that in September 2014 her pay rose to £45,883 p.a., in March 2015 to £56,311 p.a., in August 2016 to £62,568 p.a., in November 2016 to £70,910 p.a. and in May 2017 to £94,910 p.a. As the tribunal observed “her income rose significantly and quickly”. Her mother was on a similar or greater level of remuneration. Reflecting the level of concern about the evidence the tribunal noted that:

The impression the respondent wished to give us was that she only discovered the true extent of the amount of money being paid to the claimant and her mother shortly before she suspended the claimant and her mother on 4 October 2017.

paragraph 41 of the judgment

However, Dr Rathor had signed off accounts in January 2016 which showed that wages and salaries paid amounted to £183,645. She also knew that Ms Sidhu’s pensionable pay as shown in the P32 for June 2015 was £4962 gross for the month, or £56,311 p.a. the tribunal therefore found that this was her authorised salary at the time. However, subsequent pay increases were found as a fact not to have been agreed by Dr Rathor so that, in effect, they amounted to unauthorised pay awards made by Ms Sidhu to herself. When she was suspended on 4 October Ms Sidhu consulted solicitors immediately and a letter from the solicitors was delivered on the same day. The tribunal took this as an indication that Ms Sidhu and her mother had been preparing for challenges to their salary levels: “Put another way, we doubt that individuals genuinely shocked and surprised by the matters raised at the meeting on the morning of 4 October 2017 would have acted so swiftly”.

However, it also seemed likely that, from June 2017, Dr Rathor knew that there was a problem:

However, we find that from about June it is probable that the respondent became increasingly aware of the high levels of remuneration being paid to the claimant and that it was this that was increasingly souring the relationship between the parties. That ties in with the letter from CLP Solicitors which refers to the respondent having concerns over the claimant’s mother’s salary over many months. The first statement by the respondent prepared for the disciplinary process contains a number of remarks concerning the claimant’s lifestyle – referring to her ‘luxury lifestyle (exotic holidays, sports cars, branded clothing and accessories and diamond necklaces …’. This is carried on in her witness statement for these proceedings where she refers to the claimant owning two houses, having a diamond necklace and driving a new Mercedes car. Such observations, whilst not perhaps that relevant to the case, do suggest that the respondent was unaware of exactly how much was being paid to the claimant and demonstrate why the relationship was souring.

paragraph 53 of the judgment

On 3 October 2017 Dr Rathor had contacted her employment law advisers, Peninsula Business Services. The following day she called in Ms Sidhu and her mother and suspended them both. Ms Sidhu was invited to attend an investigation meeting on 10 October. On 9 October Ms Sidhu’s solicitors wrote to the respondent, objecting to the lack of specific allegations – the letter asking her to attend the investigation meeting merely stated that “we have concerns regards your conduct”.

Nonetheless, the investigation went ahead although Ms Sidhu was not in attendance. Thereafter she was called to a disciplinary hearing which, after postponements, took place on 30 October. Ms Sidhu was interviewed by a Mr Pegg of “HRFace2Face”. It became clear during the interview that Mr Pegg had access to far more documents than had been made available to Ms Sidhu.. Ms Sidhu attended a re-interview with Mr Pegg on 2 November. In his report, Mr Pegg referred to a forensic investigation report prepared by AMS accountants which showed a financial loss to the practice of over £138,000 and was directly relied on to support a finding of gross misconduct. The report was dated 13 November, i.e. nearly a fortnight after the second interview with Ms Sidhu in circumstances which allowed her no opportunity to respond. Instead she was dismissed with immediate effect as notified in a letter dated 28 November and received by her on 4 December. An appeal was unsuccessful.

Unsurprisingly, the tribunal found that the principal reason for dismissal was gross misconduct for awarding herself pay rises without authorisation, however it was procedurally unfair. She was entitled to an award for unauthorised deductions from wages. However, her awards for compensation for unfair dismissal were reduced by 100% on the basis that it was not just and equitable to make a basic award in light of the misconduct and the compensatory award was reduced to nil since the dismissal was entirely the result of her own actions.

Although the employer was not left significantly out of pocket, there will no doubt have been a great deal of inconvenience caused by the proceedings, let alone potentially very serious ramifications relating to the allegations of malpractice which emerged in the course of the hearing. The message is simple: in all such cases, seek competent professional advice from the outset. We can be contacted free on 08000 832832 and by email to enquiries@clbemployment.com.