Veitch Penny LLP - Exeter | Crediton, Devon

Case

William Hicks & Partners -v- Nadal
Employment Appeal Tribunal - (16 August 2005)

Issues

(1) Disciplinary Procedure
(2) Unfair Dismissal
(3) Procedural Unfairness

Facts

Miss Nadal was an experienced personal injury solicitor and was head of department for the employer since May 2000. A written complaint was made against Miss Nadal by her secretary and disciplinary proceedings were initiated. Following the complaint, Miss Nadal was absent from work citing stress and anxiety. Over the ensuing weeks, the employer corresponded with Miss Nadal in order to set up a disciplinary hearing. Initially she indicated she would be able to attend the hearing after a few weeks but four hearings were postponed following sick notes from Miss Nadal's G.P. stating she would be too ill to attend. The employer then invited her to make written representations instead.

Whilst this was ongoing, Miss Nadal and her employer continued to negotiate the terms of a Compromise Agreement relating to a separate issue prior to the complaint. The employer also learnt that she had been offered a position with another employer and was due to start there very shortly. The employer then informed Miss Nadal that it could only postpone the disciplinary hearing by one more day concluding that, despite her sick notes, she was well enough to attend.

Miss Nadal requested another postponement of the hearing indicating that she was due to see her G.P. the following day. The employer refused and the hearing went ahead in her absence. She was subsequently dismissed for conduct reasons.

Miss Nadal made a claim of unfair dismissal which was upheld by the Employment Tribunal. It found that the employer had not followed a fair procedure before reaching the decision to dismiss her. The employer appealed to the Employment Appeal Tribunal (EAT).

Decision

The EAT confirmed the Tribunal's decision. In order for a dismissal to be fair procedurally, and in the interests of natural justice, an employee must be given the chance to state their case. This was even more important when the employee faces serious accusations and has evidence indicating they were unfit to attend. This was also the case if the employer receives information which causes it to doubt that the employee is genuinely too ill to attend.

Comments

The EAT confirmed there were only likely to be two situations where an employee does not need to be given an opportunity to state their case where serious allegations have been made:-

1. Where the information is received from the Police that the employee has stolen goods from the employer and the employee fails to protest their innocence or implement the grievance procedure;

2. When an employee has been advised to say nothing until Trial in criminal proceedings and also fails to give a Statement to the employer.

In such situations, employers are encouraged to seek advice before deciding to proceed on this basis.

The EAT also stated that it would have only been reasonable for the employer to ignore the medical advice if there had been "compelling evidence" of deception or authoritative medical evidence indicating she could attend. The employer should have waited for a further prognosis from the G.P.

Rachel Billen – Associate Solicitor, Commercial 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