A politician who refuses to change his mind, regardless of any change in relevant circumstances, is oddly often praised for being “principled”, “strong willed” and “resolute”. However, employers who take the same approach to their employees are almost invariably hauled over the coals in the Tribunals – circumstances alter cases, after all, for all but politicians – but the example below may be the exception that proves the rule.
Miss Kisoka was accused by her employer Rydevale Day Nursery of deliberately starting a fire in the nursery. The investigation did not directly implicate Miss Kisoka, although the CCTV footage demonstrated that she was the only person in the vicinity of the fire at the relevant time. Accordingly the evidence against Miss Kisoka, while superficially quite strong, was entirely circumstantial, and the police decided to take no action as a result. Miss Kisoka protested her innocence but was dismissed for gross misconduct. As Rydevale had only a few employees, it decided to ask an independent body to conduct the appeal and so maintain the maximum degree of procedural propriety. It confirmed to Miss Kisoka that the decision made at the appeal would be final.
It doubtless came as a surprise to the employer (and quite likely to Miss Kisoka as well) when the appeal was upheld by that third party. The employer was unhappy and asked the appeal panel to reconsider its decision. The panel was not prepared to do so, the employer refused to accept its decision, Miss Kisoka remained an ex-employee and accordingly she brought Employment Tribunal proceedings.
The Tribunal decided that Miss Kisoka had been fairly dismissed despite the employer’s promising to be bound by the appeal ruling and then ignoring it. When she appealed to the Employment Appeals Tribunal, the decision remained unchanged.
The Judge indicated that the question of whether the employer should accept the decision of the independent appeal panel was not relevant – instead the focus should be on whether the employee had been treated fairly overall. For this question, there were no “fixed or inflexible rules”. He decided not to provide any guidance on whether an employer should normally be bound by the decision of an appeal panel, as he regarded that question as an unnecessary gloss on the statutory wording which governs the fairness or otherwise of dismissals and says that the issue of fairness or otherwise depends on whether (having regard to the size and administrative resources of the employer) it acted “reasonably” in dismissing, that question in turn to be” determined in accordance with equity and the substantial merits of the case”.
In theory the purist approach taken by the Tribunal here is correct – strip away all the extraneous details and ask whether, having regard etc., the employed acted reasonably in treating the circumstances as sufficient to justify dismissal. In reality, however, the decision is unhelpful, not because of the outcome but because of the lack of guidance it gives as to what will count as reasonable in the first place. Remember that the statute itself says nothing of all the procedural hurdles and obligations which generally dictate the outcome.
We would not advise employers to change their approach to appeal hearings based on this decision. It seems to be restricted to its specific facts. In particular, the employer was very small and the conduct alleged very serious. The most important lesson here may be not to use external parties to conduct grievance or disciplinary appeals or, as a minimum, not state that their decisions will be final. Use them as advisers, by all means, but delegating your decision to them is normally losing control of it altogether and subordinating it to their own personal issues and agendas. I am haunted still by the experience of a client which in its eagerness to do the right thing hired an external consultant to hear a grievance appeal concerning sexual harassment by a senior manager. The consultant found that there was no real evidence to support the allegation but upheld it all the same because on interviewing the manager she had noticed “that sort of twinkle in his eye”.