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Change from Informal to Formal Procedure can Make a Dismissal Unfair

The recent Court of Appeal decision in Sarkar v West London Mental Health NHS Trust provides authority that an employer who chooses to deal with an offence under an informal misconduct policy cannot then dismiss an employee for gross misconduct under a formal disciplinary procedure, when it is based on the same facts. The Court of Appeal held that this is not within the ‘range of reasonable responses’ of an employer and would therefore be an unfair dismissal.

The claim involved a consultant who had been accused of harassing and distressing behaviour by various work colleagues. The Trust decided to deal with the issue under the Fair Blame Policy (FBP), which was an informal procedure for dealing with minor matters. The FBP subsequently broke down and the Trust decided to adopt the formal disciplinary procedure. Subsequently, the Claimant was summarily dismissed for gross misconduct.

The Court of Appeal held that the Trust had used a procedure which had indicated that the matter was only of a minor nature. The FBP allowed for a maximum penalty of a formal written warning and therefore, the dismissal was outside the range of reasonable responses. Even though minor additional matters had come to light, these did not amount to gross misconduct.

What does this mean for Employers?

The case highlights the importance of discussing the initial categorisation of misconduct based on its seriousness. A consistent clear approach needs to be adopted in respect of misconduct and it is vital that the outcome is considered prior to any meetings or procedures being conducted.  This is particularly important for those employers who have complex procedures in place. Furthermore, an employer will not be able to impose a higher sanction than that which is stated within the policy adopted.

In Sarkar, the FBP did include a clause which allowed the Trust to adopt the formal disciplinary procedure if it was deemed to be necessary. However, such a clause was disregarded and would therefore not be accepted as a valid argument from an employer.  

It would be advisable to approach all acts of misconduct under the main disciplinary procedure, as any informal approach may restrict an employer’s freedom of action at a later date.  Additionally, an employer should never play down the gravity of an offence.

Can an employer have more than one form of disciplinary policy/procedure in place?

An employer can still continue to have a number of different procedures in place, so long as they adopt a cautionary approach. Any departures from the policies should be justified. It would appear that there would need to be new clear evidence of more serious issues before it would be deemed fair to halt one process. Furthermore, an employer would be advised to fully document the procedures and changes and ensure that they can be explained. A mere change of heart will not be seen as a sufficient reason to adopt a different policy.