Veitch Penny LLP - Exeter | Crediton, Devon

Case

Taylor v OCS Group Limited
Court of Appeal - 31 May 2006

Issues

(1) Disciplinary Procedures
(2) Unfair Dismissal
(3) Appeals

Facts

Mr Taylor had been employed as a Database Programmer/Analyst by OCS Group Ltd in 1999. He was profoundly deaf and could lip read but with difficulty. His disability satisfied the definition of a disability under the purposes of the Disability Discrimination Act 1995.

Mr Taylor was disciplined following an incident where he gained remote access to another employer’s terminal and acquired confidential information about staff salary levels. This was in breach of the employer’s policy on access to other terminals.

At an investigatory meeting Mr Taylor was not represented (largely due to his misunderstanding) and did not fully understand what was happening. A disciplinary hearing was held during which he was dismissed. He had been given no information in writing prior to or during the meeting, to indicate that it was a disciplinary hearing. He had no interpreter, and had to rely on his sister to assist him.

He appealed the decision to dismiss. He was provided with an interpreter for part of the appeal hearing only.

At the employment tribunal, the dismissal was found to be unfair because Mr Taylor had been unable to fully participate in the proceedings. The tribunal found that first hearing had been unfair, and the holding of the appeal had not rectified the unfairness of it. The tribunal had reached this latter decision by taking the approach that a fair appeal will only cure a bad hearing if it takes for the form of a re-hearing, rather than a mere review. This approach had followed the much quoted case of Whitbread & Co Ltd v Mills.

This decision was approved by the Employment Tribunal and the matter was subsequently referred to the Court of Appeal.

Decision

At the Court of Appeal it was confirmed that the correct approach to take was for the Tribunal to review the fairness of the procedure as a whole. Simply assessing fairness by determining whether an appeal was a re-hearing or a review was insufficient. A tribunal must look at the overall fairness of the procedure and the particular circumstances of the case.

Comments

It should be noted that this case took place prior to the coming into force of the statutory dismissal and disciplinary procedure. A breach of the statutory procedure will make the dismissal automatically unfair, regardless of how the appeal was conducted. However, simply complying with the statutory procedure will not guarantee the dismissal will be fair, so this case remains of relevance. It highlights the importance of maintaining a fair and appropriate procedure throughout, assessed on a case by case basis. So if new evidence is brought to an appeal, this must be considered and evaluated alongside the previous reports and findings of the earlier hearing. In circumstances such as in this case, more steps would need to be taken to ensure the whole process was fair. This would certainly include considering the original evidence afresh and giving the employee an opportunity to act upon it.