Disciplinary hearing was too long and arduous

Posted: 21st May 2013


Disciplinary hearings are often arduous but an Employment Appeal Tribunal (EAT) ruling has emphasised that wise employers will keep them as stress-free as possible. Where the first day of a hearing lasted more than 10 hours, the EAT found that this was itself a factor in the employee’s unfair dismissal.

StressA senior trade union official had succeeded in his unfair dismissal claim before an employment tribunal (ET) on both substantive and procedural grounds. His compensation was reduced by 50 per cent to take account of his own contributory conduct. The ET declined to make a further 'Polkey' reduction to reflect the chance that he would have been dismissed even had the disciplinary proceedings been fairly conducted.

The EAT upheld the employer’s challenge to the findings of substantive unfairness. However, it went on to rule that the manner of the employee’s dismissal had been procedurally unfair due to the excessive length of the disciplinary hearing’s first day and the exclusion of two of the nine panel members from the essential decision-making stage of the process.

The first day of the hearing had proceeded from 10.30am until 9pm, with a break for lunch, and the EAT noted evidence that the long day had affected the alertness of all those present and that certain members of the panel were seen to be ‘falling asleep’. The employee had said that he felt ‘badgered’ by the lengthy questioning to which he was subjected and that this constituted a ‘real unfairness’.

The employer’s argument that any unfairness had been ‘cured’ by an internal appeal process of which the employee had taken advantage was rejected. The case was remitted to the ET with a direction to reconsider the appropriate discount for contributory conduct and the employer’s arguments in respect of a possible Polkey reduction. Another issue relating to the employee’s loss of pension entitlement was also remitted.