Veitch Penny LLP - Exeter | Crediton, Devon

Case

Sarkar –v- West London Mental Health NHS Trust

Issues

(1) Disciplinary proceedings
(2) Unfair dismissal
(3) Bullying and harassment

Facts

Dr Sarkar was employed as a consultant psychiatrist. A number of complaints were received relating to bullying and harassment. The Trust concluded the complaints did not amount to misconduct under the formal disciplinary procedure but they could be dealt with under the Trust’s informal Fair Blame Policy which was designed to deal with “fairly low level breaches” of conduct. The policy stated that the highest level of sanction available to it was a written warning.

During the process, further allegations (albeit relatively minor) were made against the doctor. The Trust felt that further action needed to be taken. The Trust’s medical director advised Dr Sarkar that he would be reported to the GMC. This would have significant consequences for his career. The Trust then took advantage of a clause in the policy which said that if there was evidence of greater misconduct then the Fair Blame Policy could be put aside and the formal invoked. Dr Sarkar was then summarily dismissed for gross misconduct arising from the repeated minor offences. A claim was then brought at the Employment Tribunal.

The Tribunal found that the Trust had a potentially fair reason to dismiss the doctor, that there had been a fair and reasonable investigation and that the procedure was fair. However, the dismissal would be unfair given that the process had started under the Fair Blame Policy which explicitly stated that the maximum sanction was a written warning. Therefore, it was not within the range of reasonable responses to have dismissed the doctor. A 25% deduction was made for contributory fault. The decision was upheld at the Employment Appeal Tribunal. The matter was appealed again to the Court of Appeal.

Decision

The Court of Appeal had to consider whether it was appropriate for the Trust to tell Dr Sarkar that the allegations were not sufficiently serious to warrant formal disciplinary action and then to exercise the clause which allowed for the formal procedure to be initiated. The Court found it was inconsistent of the Trust to dismiss Dr Sarkar based on the same allegations when it had originally given him an indication that the alleged misconduct was relatively minor. The Court of Appeal upheld the original finding of unfair dismissal.

Comments

This case highlights the importance of being clear and consistent about the allegations being made against the employee throughout the disciplinary procedure. Any deviation from the intended process needs to be clearly justified.

Rachel Billen – Associate Solicitor, Employment Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it