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Unfair Dismissal: Beware The Scapegoat.

Date: 13/08/2014 | Corporate, Employment & HR

A high profile decision of the Employment Tribunal has demonstrated once again the importance of adhering to disciplinary procedure in dismissal situations.

The Case.

John Linwood was dismissed from his position as chief technology officer by the BBC for his involvement in the failed £100m Digital Media Initiative project, which was intended to update the Corporation’s production systems. The tribunal held that Mr Linwood’s sacking was predetermined by management prior to the start of the disciplinary procedure, who had identified him effectively as a scapegoat on which to place the blame for the project’s failure, the result therefore being a ‘foregone conclusion’.

The tribunal also took a particularly dim view on the Corporation’s approach as to procedure: the Claimant was served with a large volume of documents and informed that he would need to familiarise himself with these prior to a disciplinary hearing. When the Claimant then requested that the hearing be postponed due to the fact that he would be on family leave at the time, the hearing was instead brought forward. Further, when the Claimant asked for further clarification as to the nature of the allegations, he was told that this was not necessary.

In terms of the Corporation’s investigations it was found that both the initial investigation and the appeal relied too heavily upon witness testimony regarding the need for accountability following the projects failure, rather than any documentary evidence as to negligent conduct on the part of the employee. On the basis of the facts, the tribunal noted that, given the BBC had clearly lost confidence in Mr Linwood, the appropriate action would have been to have made this clear to him in a reasonable manner and give him six months notice with gardening leave.

What Does It Mean?

The situation where an employee’s position becomes untenable is a common one, however, what this case shows is that following the appropriate procedures is key to avoiding claims for unfair dismissal. Training your managers in the conduct of disciplinary matters is key and we can help you with this. Employers must clearly set out their grounds for any disciplinary action and be transparent in their explanations in their communications with the employee. Those carrying out the disciplinary investigations and hearings should follow the procedures laid down in the staff handbook to the letter. The manner in which these procedures are carried out should also give the employee a fair opportunity to defend themselves – so when an employee asks for postponement of a meeting, these requests should only be denied where the justification for doing so is robust. Further, the action taken should be appropriate – this may be different where the issue is connected to the employee’s capability for example, as opposed to a situation involving misconduct. Where the employer is in any doubt, seeking external advice, could avoid the cost of lengthy disputes in the long term.

Further Information.
Davidson Chalmers are specialists in employment law, providing clients with a first-rate, cost-effective and personal service and a range of comprehensive training programmes. If you would like further details about these changes to UK employment law then please do not hesitate to contact Davidson Chalmers’ Employment Team, who will be happy to provide their advice and assistance.

The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication. 

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