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Can a flawed disciplinary process lead to a constructive unfair dismissal?

The Employment Appeal Tribunal in Retirement Security Ltd v Wilson has considered whether an employee could resign and claim constructive unfair dismissal as a result of procedural defects in their employer’s disciplinary process.

Background

The Claimant was employed to manage a retirement community by Retirement Security Ltd (“the Respondent”). The Claimant was accused of serious misconduct by four duty managers and as a result she was suspended immediately by the Respondent.

The Claimant’s manager sent her a letter inviting her to a disciplinary investigatory meeting, however this was delivered to the wrong address and the Claimant only received this letter one day before the investigation meeting was due to take place. The letter also did not give any detail as to the particular allegations made against her, but instead listed bullet points, such as ‘alleged theft’, ‘confidentiality’ and ‘neglect’.

The Claimant attended the meeting, which was later described by the Respondent as ‘an ambush meeting’. The Claimant was assigned a more senior manager as a companion, despite not having requested this, who subsequently chaired the meeting. The Claimant was also presented with evidence which she had not had sight of prior to this meeting.

Following the meeting the Claimant concluded that the Respondent had already made its decision that she was guilty of misconduct before any fair disciplinary hearing had taken place. With that view, she resigned and brought a claim for constructive unfair dismissal.

The Law

Under each contract of employment, there is an implied mutual duty of trust and confidence owed between the employer and employee. An employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence. In instances where the employer has acted in such a manner, an employee may resign and claim constructive unfair dismissal.

Decision

The Employment Tribunal upheld the claim and the Respondent appealed.

In dismissing the appeal, the Employment Appeal Tribunal (“EAT”) decided that the procedural errors in the investigation process constituted a breach of the implied duty of trust and confidence, which had entitled the Claimant to resign and bring a claim for constructive unfair dismissal. The EAT noted that the investigatory meeting was “high handed” and that the process was “so flawed that the Claimant could reach no other view than that the Respondent wanted rid of her”.

Comment

It is key that an employer is seen to act fairly and reasonably. This decision demonstrates the importance of fairness at all stages of a disciplinary process and the need for managers to have received training on how to properly conduct investigations and how to deal with issues under their disciplinary policy.

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