Why employers are at risk if they do not follow a correct disciplinary process
Employers may well be reviewing their disciplinary procedures today, after the reports that Sharon Shoesmith, previous head of Children’s Services at Haringey Council, has agreed a “six figure settlement” following her dismissal from the Council almost five years ago.
Shoesmith was, of course, very publicly sacked in early December 2008, just days after then education secretary Ed Balls declared that she should be dismissed without compensation as Director of Children and Young People’s Services at Haringey. This was a role specifically provided for by statute and the decision was made after regulator OFSTED found Haringey had failed to protect 17-month-old Peter who had died in 2007 following months of abuse.
It was her statutory role that gave Shoesmith the right to apply for judicial review of the decision to remove her, and also the right to a potentially greater compensation level than what she could otherwise achieve in an employment tribunal (namely a maximum of £74,200 compensation or 52 times a week’s pay- whichever is the lower). As she was also an employee of Haringey Council, claims could be brought against the Council, the Secretary of State and OFSTED.
With regard to her subsequent dismissal as an employee by Haringey Council, the biggest procedural failing was that the Council did not follow a proper process. In particular, they failed to allow proper investigation into the OFSTED reports crucial findings before Shosemith was dismissed, and were content to rely on the directions of Ed Balls (later found to be misguided). The fact that Shoesmith was accountable for the department in Haringey did not disentitle her to elementary fairness, such as being afforded an opportunity to put her case across before being removed from office. In short, the Court of Appeal found that she had been “unfairly scapegoated”.
So what obligation do employers have to ensure that they comply with procedural fairness in disciplinary cases? At the very least, employers would be expected to comply with the ACAS code of Practice, which includes carrying out an investigation of potential disciplinary matters without unreasonable delay to establish the facts of the case. If there is a disciplinary case to answer, you should be notified in writing with sufficient information about the issues and be given details of a disciplinary meeting, time and venue. The disciplinary meeting should be held as soon as possible and you should have a reasonable time to prepare for your case. Employers should provide evidence of any wrongdoing, and you should be allowed to answer any allegations, ask questions, present evidence and call relevant witnesses. You are also entitled to be accompanied to the disciplinary meeting by a work colleague, trade union representative or an official employed by a trade union. You further should have the right of appeal.
If an employer fails to follow a proper process, it could lead to a finding of unfair dismissal, although employer could subsequently challenge the amount of damages that should be awarded. They would need to convince a tribunal that even if a proper process had been followed, the decision to dismiss would still have been the same. Not every employer will win this argument, however.
The Baby P case has shown the willingness of the courts to protect individuals in situations where employers flagrantly breach established employment law practice. By also finding against the Secretary of State in this case, it has also shown that nobody is above the law.
Philip Landau is an employment lawyer at Landau Law, Solicitors. Please feel free to telephone on 020 7100 5256 or email firstname.lastname@example.org