South London And Maudsley NHS Foundation Trust v Balogun

A procedural defect in a disciplinary process is a relevant factor under section 98(4) of the Employment Rights Act 1996, but it does not of itself make a dismissal unfair. The tribunal must assess the fairness of the process as a whole and decide whether the employer acted reasonably in treating the reason for dismissal as sufficient. It must weigh the employer’s explanation for the defect, including the need to protect vulnerable persons and avoid prejudicing a police investigation.

Misconduct includes a refusal to admit misconduct found by the employer, or conduct relating to the underlying misconduct. Where a tribunal finds a real possibility that a proper procedure would have produced a different outcome, it must also consider the possibility that dismissal would still have occurred and assess any Polkey reduction.

The claimant, a registered mental health nurse, was summarily dismissed after a disciplinary panel found that she had repeatedly slapped a service user. The panel relied principally on a colleague’s evidence and noted supporting evidence obtained from another service user, JS. JS had been interviewed during safeguarding inquiries, but not in accordance with the Trust’s disciplinary procedure. The police later took no action and JS was not re-interviewed after discharge.

An Employment Judge found the dismissal wrongful and unfair, holding that the Trust had not established a potentially fair reason, that the investigation was substantively unfair, and that no Polkey deduction was available. The Trust appealed against the unfair-dismissal findings. The central issues were the statutory reason for dismissal, the proper assessment of a procedural defect, and whether a reduction should have been considered.

1. Appeal allowed. The Employment Judge erred in finding, if she did so, that the Trust had not shown a potentially fair reason for dismissal. On the evidence, the principal reason was the claimant’s alleged misconduct in slapping the service user. Her failure to admit it was, at most, an additional reason relevant to sanction. In any event, a refusal to admit conduct found to have occurred was conduct, or related to the employee’s conduct, within section 98(2)(b) of the Employment Rights Act 1996.

2. The Judge also applied the wrong approach to section 98(4). A failure to follow an employer’s disciplinary procedure is a factor in the assessment of fairness, not a conclusive answer. The tribunal must assess the entire process and the reason for dismissal together. It had to take account of the Trust’s reasons for not re-interviewing JS, including the protection of vulnerable patients and the risk of interfering with the police investigation. The Judge instead gave the procedural defect excessive weight and put those considerations aside.

3. The EAT did not decide whether a properly directed tribunal would find the dismissal fair. A fresh tribunal might still find unfairness after applying the correct approach.

4. The Judge’s finding of a real possibility that a proper process would have produced a different result necessarily left open the possibility that dismissal would have occurred in any event. That was the question addressed by a Polkey reduction. If unfair dismissal were established, the Judge had to assess the appropriate reduction rather than treating one as unavailable.

5. The EAT declined to substitute findings. The unfair-dismissal claim was remitted to a fresh Employment Tribunal, including any assessment of a Polkey reduction.

• Employment Appeal Tribunal: Allowed the Trust’s appeal in [2014] UKEAT 0212_14_0512, set aside the unfair-dismissal determination, and remitted that claim to a fresh tribunal.
• Employment Tribunal: In a judgment sent to the parties on 27 February 2014, found the claimant wrongfully and unfairly dismissed and made no Polkey reduction.