Royal Bank Of Scotland v O'Doherty

An employer may not determine dismissal before giving the employee a real opportunity to answer the allegations. A tribunal may infer pre-judgment from the timing and content of an outcome letter, the use of a dismissal-only template, and a failure to obtain information said to be needed before the outcome was issued.

In a reasonable-adjustments claim, a tribunal’s failure expressly to label the relevant provision, criterion or practice is not fatal where the practice is apparent, common ground and its application to the disabled employee’s substantial disadvantage is clearly identified. Normal disciplinary processes may require adjustment where the employee’s disability impairs effective participation.

The claimant, a bank branch manager with depression, was investigated and then dismissed for alleged unauthorised access to accounts and misuse of a staff access code. Occupational-health advice identified impaired memory, concentration and distress, and recommended either deferral of the disciplinary process or generous time and accommodation.

The Employment Tribunal held that the dismissal was unfair because the disciplinary outcome had been pre-judged and the claimant had not had a proper opportunity to defend himself. It also found a failure to make reasonable adjustments during the investigation and disciplinary process.

The employer appealed, contending that pre-judgment lacked an evidential basis and that the Tribunal had failed to identify the relevant provision, criterion or practice. The appeal also raised the unresolved Polkey question at the remedies stage.

1. Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal was entitled to find that dismissal had been pre-judged before the disciplinary hearing. Its finding did not mean that dismissal had been decided before the investigative meeting; read fairly, it referred to a decision following the investigation and before the disciplinary meeting.

2. There was ample material supporting that inference. The employer proceeded despite medical advice that the claimant needed time to improve if he was to present his case effectively. The outcome followed a template providing only for dismissal, and the tribunal could find that information thought necessary by the decision-maker was supplied only after the dismissal outcome letter had been sent.

3. The Tribunal’s reasonable-adjustments conclusion was also sustainable. Although it had not expressly identified the provision, criterion or practice, the relevant normal practice was apparent and common ground: investigation meetings proceeded without advance particulars of allegations and without accompaniment. Applying normal disciplinary processes to this claimant, in light of his disability, placed him at a significant disadvantage. The disadvantage could and should have been addressed by advance information, accompaniment and adequate time to prepare and participate.

4. The Employment Tribunal had not, however, determined the Polkey issue. If the employer maintained at the remedies hearing that the claimant committed either alleged act of gross misconduct and that future-loss compensation should consequently be nil, the Tribunal had to determine that issue rather than leave the underlying factual questions unresolved.

5. The case was remitted to the original Tribunal, if possible, to determine the monetary award.

• Employment Appeal Tribunal: dismissed the employer’s appeal and remitted the case to the original Employment Tribunal, if possible, for determination of monetary awards.

• Employment Tribunal: found the claimant’s dismissal unfair and found that the employer had failed to make reasonable adjustments during the disciplinary process. It had not resolved the Polkey issue.