EAT Unfair Dismissal : Procedural Fairness/Automatically Unfair Dismissal
The Claimant was employed by the Respondent as an Aviation Security Compliance Inspector.
The Respondent launched an investigation into possible misconduct by the Claimant in relation to his expenses and use of hire cars.
Mr Goodchild, a manager was appointed to conduct the investigation and act as dismissing officer if necessary. Mr Goodchild was inexperienced in disciplinary proceedings and during the course of preparing his report and decision received advice from the Respondent’s Human Resources Department. The advice he was given was not limited to matters of law and procedure, and level of appropriate sanctions with a view to achieving consistency. The advice extended to issues of the Claimant’s credibility and level of culpability. Mr Goodchild’s first draft report contained a number of favourable findings so far as concerned the Claimant. For example, he found that the Claimant’s misuse was not deliberate; there was no compelling evidence that the Claimant’s actions were deliberate; he found that explanations given by the Claimant for expenditure on petrol were ‘plausible’ and that he had made a persuasive argument in relation to his fuel expenditure and offered a compelling and plausible justification for fuel use being significantly in excess of that expected by the line manager. He concluded: he was minded to find the Claimant: ‘guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct . . ‘
After communications between Mr Goodchild and Human Resources, Mr Goodchild’s position as evidenced by further drafts became more critical of the Claimant. Favourable and exculpatory findings were removed and in the eventual final report Mr Goodchild wrote that:
‘Having given careful consideration to all the facts of the case, I am minded to conclude that, on the balance of probability, the claimant is guilty of gross misconduct in respect of both the misuse of the Corporate card and the misuse of hire cars funded by the Respondent. My recommendation is that he should be dismissed from his post.’
The recommendation was subsequently changed to one of summary dismissal which was effected. No new evidence came to light after the initial report and the Employment Judge failed to explain what it was that persuaded Mr Goodchild to change his views so radically. Human Resources appear to have sought to persuade Mr Goodchild to take a more critical view of the Claimant’s conduct and to reject his explanations for certain expenditure that the Claimant had maintained was the result of mistakes by him as Mr Goodchild originally appears to have accepted. There was an inference that Mr Goodchild had been inappropriately lobbied by Human Resources and the Employment Judge had not given sufficient consideration as to what had led to Mr Goodchild’s change of heart.
Although a dismissing or investigating officer is entitled to seek guidance from Human Resources or others, such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity. Chhabra v West London Mental Health NHS Trust [2014] ICR 194 applied.
A Claimant facing disciplinary charges and a dismissal procedure is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them.
Serota QC HHJ
[2015] UKEAT 0352 – 14 – 0409
Bailii
England and Wales
Employment
Updated: 03 January 2022; Ref: scu.552080