Disciplinary procedures best defence

Posted: 11th May 2018

ResignationEmployers that take legal advice to ensure that their disciplinary procedures are fair and rigorous are far less exposed to the threat of employment proceedings. In a Court of Appeal case on point, an NHS trust defeated a nurse’s constructive unfair dismissal claim on the basis that the procedures it followed were unarguably reasonable.

The nurse claimed that she had been the subject of unjustified complaints in respect of her performance and that she had been bullied by a number of her colleagues. Following an altercation between her and a healthcare assistant, the trust instituted disciplinary proceedings in respect of both of them.

Following a hearing, a panel found both women guilty of inappropriate behaviour in that they had shouted at one another in close proximity to an area in which patients were being treated. Both were issued with final written warnings. The nurse’s appeal against that decision was later dismissed and she resigned the following day.

Her subsequent complaint of constructive unfair dismissal was, however, rejected at an early stage by an Employment Tribunal (ET) on the basis that her claim had no reasonable prospect of success. She had little chance of establishing that the trust did not have reasonable ground for instituting the disciplinary proceedings. In the light of the evidence, she had clearly raised her voice within patients’ hearing and the decision to issue her with a final warning was justified. Her appeal against that ruling was later dismissed by the Employment Appeal Tribunal.

In rejecting her challenge to the latter ruling, the Court found that the procedure followed by the trust could not be faulted. Such a process, properly followed, or its outcome, could not constitute a repudiatory breach of contract. Although the nurse believed the outcome of the process to be wrong, the test was an objective one and a fair disciplinary process could not be viewed as having destroyed or seriously damaged the relationship of trust and confidence between employer and employee.