In most disciplinary situations, it will be part of a fair process for an employer to carry out an investigation into suspected misconduct before deciding to take disciplinary action. However, the decision in Radia v Jefferies International Ltd illustrates that this will not inevitably be the case. Failing to offer an appeal hearing will often be fatal to fairness though.
Mr Radia was employed in a senior financial services role, and had to be assessed as fit and proper to carry out his duties. When he brought a disability discrimination claim against his employer, the Tribunal found that his evidence was evasive or “not credible in many respects”. Those findings led the employer to take disciplinary proceedings against him, on the basis that he had acted dishonestly and was not a fit and proper person to perform his role.
The employer did not conduct an investigation into the allegations, but proceeded directly to a disciplinary hearing on the basis of the Tribunal’s findings. He was dismissed, and not offered an appeal.
His claim for victimisation and unfair dismissal was rejected by the Employment Tribunal. He then appealed to the Employment Appeal Tribunal (EAT), and was successful in relation to the point about the appeal. The Employment Tribunal had originally found that even if an appeal had been held, it would have made no difference, and so the lack of appeal did not render the dismissal unfair. However, the EAT disagreed with that finding, as they did not consider there was enough evidence to justify that decision.
However, the Claimant’s appeal in relation to the investigation failed. The EAT found that the two phases of investigation and disciplinary are not a legal requirement for an employer, and in the circumstances, it was considered that the lack of the two stages in this case did not make the dismissal unfair. The correct question was whether the employer had concluded that holding an appeal would have been futile. Instead, the second Tribunal had reached its own conclusion on that point. This was not the right approach, so the employee’s appeal on that point succeeded.
Peter Stanway, our BackupHR™ legal expert comments:
This is a useful, but fact specific, judgment for employers, showing that it may sometimes be possible for employers to use evidence from another source rather than conducting a time-consuming internal investigation. What will amount to a reasonably fair procedure will depend on the circumstances, and how they are interpreted by the Tribunals, which makes it difficult for employers when making decisions.
Following clear procedures when disciplining and dismissing an employee mitigates the risk of an employer losing at Employment Tribunal. They provide employers and employees with a clear understanding of the process that will be followed, so they both know what to expect. Appeals are part of natural justice, so almost inevitable. They also provide an opportunity for employers to correct any earlier errors, and get a better idea of the potential claimant’s case. Failure to follow procedures also sends bad signals to your remaining workforce.
- Conduct a fair and proportionate investigation before a disciplinary meeting.
- Review the investigation at the disciplinary meeting, and be prepared to investigate further if the employee raises new evidence.
- Always offer dismissed employees the right to appeal, regardless of length of service.
- Hear the appeal fairly, and in accordance with your procedure.
- Write to confirm the appeal decision, giving clear reasons for the final judgement.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.