Defects rectified on appeal?

11 September 2015

Every disciplinary situation is an exercise in fairness. There’s no room for assumption or pre-judgment. The employee must know exactly what the allegation against them is, what evidence you have, and they should have time to take it all in and prepare their response for a disciplinary hearing.

Biggin Hill Airport v Derwich

Every disciplinary situation is an exercise in fairness. There’s no room for assumption or pre-judgment. The employee must know exactly what the allegation against them is, what evidence you have, and they should have time to take it all in and prepare their response for a disciplinary hearing.

Ms Derwich was invited to a disciplinary meeting relating to, among other things, the saved image of a witch as a screensaver on a supervisor’s computer. After the hearing her employer interviewed witnesses, but didn’t disclose the results of those interviews to Ms Derwich before dismissing her. She was given the evidence before her internal appeal, but the dismissal decision was upheld.

Ms Derwich’s unfair dismissal claim was initially successful. At the time she was dismissed, she didn’t know the charges she faced and hadn’t seen the evidence against her, the tribunal said.

But the Employment Appeal Tribunal overturned that decision. The internal appeal might have cured the earlier deficiencies, it said. Even if the charges hadn’t been made clear to Mr Derwich initially, she knew about them by the time of her appeal. She had been sent a copy of the disciplinary procedure, which referred to gross misconduct offences. She had also been given notes of all interviews in time to prepare for the appeal.

The case has now been sent to a fresh tribunal to decide whether or not the dismissal was unfair or wrongful.

Two main lessons: (1) don’t dismiss an employee before giving them all evidence relating to the allegation, and (2) if an employee elects to appeal the dismissal decision, be meticulous in your handling of it – especially if there were defects earlier in the process.


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