The UK Employment Appeals Tribunal held that the decision of an employer not to follow the recommendation of an independent appeal panel overturning an original decision to dismiss, did not make the eventual dismissal unfair. The employee in this case was employed in a children’s nursery and was dismissed for gross misconduct based upon the employer’s belief that she had started a fire in the nursery.
Prior to her dismissal, the employer conducted an investigation and disciplinary hearing into the incident and, based upon CCTV footage placing her as the only person at the scene of the fire and the fact that at the hearing she could not account for her movements, the decision to dismiss was reached.
The employee appealed this decision. As the nursery was a small business with few senior managers, it arranged for an external panel to conduct the appeal. The appeal panel overturned the decision to dismiss mainly because it felt there was insufficient evidence to implicate her as having started the fire.
The employer was unhappy with this decision as it felt there was sufficient evidence to support its original decision to dismiss and therefore declined to follow the panel’s decision and the dismissal stood.
The employee challenged her dismissal to the UK Employment Appeals Tribunal. As part of its assessment as to whether the dismissal was fair, the Tribunal had to consider whether the employer could deviate from the panel’s decision and effectively deny the employee the right of appeal which is required by the UK Code of Practice on disciplinary and grievance procedures (which is analogous to the Irish LRC Code of Practice). The Tribunal analysed the overall procedure utilised by the employer and determined that the decision to enforce the dismissal was not unreasonable based on the evidence gathered by the investigation and at the hearing. Therefore, the fact that the employer did not implement the panel’s decision did not render the dismissal unfair.
In making its decision, the Tribunal was particularly influenced by the size and resources available to the employer when conducting the disciplinary procedure, the fact that the employee in question was responsible for the welfare of children and the fact that the terms of engagement of the panel did not clearly require the employer to implement its decision.
Whilst this is undoubtedly an interesting case from an employer’s perspective, it is by no means clear that an Irish Tribunal would reach the same decision. If an employee is not happy with an external panel’s decision, advice should be sought.
Contributed by Louise Moore and Catherine O’Flynn.