Commissioner of Police of The Metropolis v Buchanan

A Step 1 disciplinary letter complies with the Employment Act 2002 where it clearly indicates that dismissal is contemplated and gives sufficient factual detail, including relevant enclosed reports and witness statements. An inaccurate reference to a penalty notice as a conviction does not necessarily invalidate otherwise adequate notice.

A penalty notice for disorder is neither a conviction nor a formal warning. Where misconduct is alleged following such a notice, the employer must establish the misconduct through a proper disciplinary process. It must investigate the facts and apply the Burchell principles before considering sanction and mitigation. A convictions procedure which assumes guilt and focuses only on mitigation is unfair.

The respondent, a civilian scenes of crime officer, was dismissed by the Metropolitan Police after accepting a penalty notice for disorder following an incident involving a taxi driver and police officers.

The London (South) Employment Tribunal found the dismissal automatically unfair for breach of the then statutory disciplinary procedure and also unfair on ordinary procedural and substantive grounds. The employer appealed, challenging the finding that its Step 1 letter lacked sufficient detail and the finding that the dismissal procedure was unfair.

The central issues were whether the letter complied with Step 1 and whether it was fair to use a convictions board after a penalty notice which was neither a conviction nor a formal warning.

1. Step 1. The Tribunal erred in finding that the employer’s letter failed to comply with Step 1 of Part I of Schedule 2 to the Employment Act 2002. The letter made clear that dismissal was a possibility and, together with the enclosed police report and witness statement, provided more than sufficient detail about the alleged misconduct. The erroneous reference to a conviction did not deprive the employee of adequate notice.
2. Nature of a penalty notice. A penalty notice for disorder is neither a conviction nor a formal warning. Treating it as such led the employer to use a convictions board procedure which wrongly proceeded on the basis that gross misconduct had already been established.
3. Fair disciplinary process. The employer had to investigate and determine the facts in accordance with the principles in BHS Ltd v Burchell before moving to sanction and mitigation. The board instead approached the matter as guilty until proved innocent and concentrated on mitigating factors. It did not properly analyse whether the conduct amounted to gross misconduct. That defect made the dismissal unfair.
4. The appeal procedure, being a review rather than a rehearing, did not cure the defects because it did not permit an effective challenge to the underlying factual basis. The Tribunal’s finding of unfair dismissal on these grounds was therefore upheld.
5. The matter was to proceed to a remedies hearing. Contributory conduct was likely to be highly relevant to any award, although the merits decision did not determine the remedy.

• Employment Appeal Tribunal: Allowed the challenge to the Step 1 finding but upheld the finding that the dismissal was unfair because of the convictions-board procedure and the failure of the appeal process to cure it.
• London (South) Employment Tribunal: Found the dismissal automatically unfair under the then statutory procedure and also unfair procedurally and substantively; reasons given on 24 September 2009.