Nabili v The Norfolk Community Health And Care NHS Trust

Where an employer has omitted a normally appropriate procedural step, an Employment Tribunal must not decide fairness by asking whether the employee could have said anything that would have changed the outcome. Under Polkey, that hypothetical is irrelevant unless the employer reasonably concluded, at the time, that the omitted step would have been futile.

In assessing the fairness of proceeding with a disciplinary hearing in an employee’s absence, the Tribunal must determine why the employer proceeded and whether that decision was reasonable in all the circumstances. Relevant matters include the effect of dismissal on the employee’s career, the applicable disciplinary procedure, and whether the disciplinary decision-maker needed to assess the employee’s explanation or state of mind.

The claimant, a consultant paediatrician, was dismissed for working for other NHS bodies while on special leave and while excluded from clinical practice. She had attended an investigatory meeting with BMA representation, but neither she nor her representative attended the later disciplinary hearing after her request for a postponement was initially accepted and then refused.

An Employment Judge dismissed her unfair-dismissal claim. The Judge held that, given the investigation and her admissions, it was unclear what further representations she could have made and that proceeding in her absence did not make the dismissal unfair. The claimant appealed. She also challenged the refusal of an adjournment to await alleged corrected investigation minutes.

The central issue was whether the Employment Judge had lawfully assessed the fairness of the decision to hold the disciplinary hearing in the claimant’s absence.

1. Appeal allowed in part. The Employment Judge’s dismissal of the unfair-dismissal claim was set aside. The claim was remitted to a newly constituted Employment Tribunal for rehearing of the fairness issue arising from the decision to proceed with the disciplinary hearing in the claimant’s absence.

2. The Judge erred by treating it as material that, after a detailed investigation, it was unclear what further representations the claimant or her representative could have made. The guidance in Polkey v AE Dayton Services Ltd [1987] ICR 142 precluded an assessment of procedural fairness by asking whether proper procedure would have altered the outcome. The exception applies only where the employer reasonably concluded at the time that the normally appropriate step would have been futile.

3. There was no finding that the disciplinary panel, or the respondent, had concluded that the claimant’s attendance would be futile. The Employment Judge also made no finding why an agreed postponement was reversed or why the panel proceeded. A sound conclusion on futility and reasonableness required findings on those matters and on whether all relevant circumstances had been considered.

4. The claimant’s state of mind was material because the dismissal letter treated her conduct as dishonest and as a knowing breach of obligations. Although she admitted working for other trusts, she had not admitted dishonesty or knowing breach. It was for the disciplinary panel, rather than the investigating officer, to assess her explanation. The Judge should also have considered the impact of dismissal upon her ability to practise as a doctor, and the applicable disciplinary procedure.

5. The challenges concerning the alleged corrected minutes and the refusal to adjourn pending recovery of documents failed. The refusal was neither erroneous in law nor perverse, since any corrections were within the claimant’s control for years and she was able to give oral evidence about the alleged inaccuracies. All other findings and conclusions of the Employment Judge were preserved.

• Employment Appeal Tribunal: Allowed the appeal on the procedural-fairness ground, set aside the dismissal of the unfair-dismissal claim, and remitted the specified issue for rehearing before a different Employment Judge.
• Employment Tribunal: Employment Judge Postle dismissed the claimant’s unfair-dismissal claim in reasons sent to the parties on 24 February 2015.
• Earlier Employment Appeal Tribunal proceedings: The judgment records an earlier successful appeal against the striking out of the same claim, but gives no neutral citation.