An unfair dismissal case that surfaced in the papers just before Christmas demonstrates the importance that employers must place on following the correct procedures when employees are dismissed. Mr Quigley, deputy head teacher at Woodlands School, was dismissed in January 2010 for allegedly harassing a work colleague. He “bombarded” Miss Cummings, a teaching assistant at the school, with texts, tried to hold her hand, and on one occasion cupped her face with his hands and kissed her. Miss Cummings subsequently complained and an investigation was held into Mr Quigley’s behaviour. This investigation upheld Miss Cummings’ complaint and dismissed Mr Quigley (although it doesn’t make it clear whether he was dismissed for misconduct or gross misconduct).
Mr Quigley subsequently submitted a claim to the Employment Tribunal for unfair dismissal (along with any other claims he may have had). The issue that was at stake here was the of “procedural” unfair dismissal – whether the Respondent (the school) had acted unfairly when undertaking the procedures to dismiss the Claimant (Mr Quigley). The Employment Tribunal found that the Respondent had failed to allow the Claimant to set his case in his defence out and had relied solely on the evidence given by Miss Cummings. Further, the Employment Tribunal found that the school investigation was prejudiced by unproven allegations of a similar nature that were made against the Claimant two years earlier. Further, it found that the attention that the Claimant was giving Ms Cummings was not entirely unreciprocated and that she had been sending him “mixed messages”. The Employment Tribunal, however, found that the Claimant’s dismissal would have been fair should an unbiased investigation have been undertaken and therefore rejected his claim for wrongful dismissal.
The Claimant was awarded £9,690 in compensation for unfair dismissal. Considering the above comments of the Employment Tribunal the award would probably have been subject to a “Polkey reduction” (where it would have been reasonable to dismiss even though there were procedural irregularities).
What is demonstrated here is the importance of complying with the correct procedures when subjecting an employee to a disciplinary or executing sanctions. Employers must comply with the ACAS Code of Practice if the disciplinary involves a misconduct or a performance issue. The ACAS Code of Practice stipulates a number of steps and procedures that employers should undertake, such as carrying out an investigatory hearing, providing employees with written statements and written evidence, holding a disciplinary hearing, how to carry out a fair disciplinary hearing, and information on appeals. Although following the ACAS Code of Practice is not mandatory the Employment Tribunal will consider a failure to comply as evidence of unfairness or at the least an adverse inference. However, considerable leeway is given to employers who do not possess the resources to comply with the Code of Practice (i.e. if a company employs only 5 staff then it is going to be likely that the same manager will have to consider the disciplinary and appeal).
So, employees, get advice on your rights relating to disciplinaries prior to attending or, if you’ve already been dismissed, on how your employer may have breached your statutory rights and unfairly dismissed you.