Disciplinary procedure

Even though the statutory dismissal and grievance procedures were scrapped last year, the case of Sarkar v West London Mental Health NHS Trust is a reminder of the need to follow a fair procedure when disciplining or dismissing an employee and to respond in a way that is appropriate, writes Willans’ Employment team.

The Case

• Mr Sarkar was a consultant psychiatrist working at Broadmoor Hospital, with over 20 years in the medical profession and a clean disciplinary record. Over a five-month period complaints were made by a number of colleagues that his conduct was ‘harassing and distressing’ and that they had felt ‘vulnerable and intimidated’.
• Mr Sarkar admitted he had acted inappropriately and agreed to work from a different site. Following investigation, the Trust decided to deal with the matter using their ‘fair blame policy’. Although part of the disciplinary procedure, it was a less formal approach and could only be used to issue sanctions up to a first written warning.
• But at the end of the process, the Trust said they would be referring Mr Sarkar to the GMC— a completely unexpected outcome and one he did not accept. As a result, the Trust then applied their formal disciplinary procedure and he was dismissed for gross misconduct. The Court of Appeal upheld the employment tribunal’s original decision that the dismissal was unfair.

Comments

The problem arose for the Trust because they began dealing with the complaints using an informal approach but later switched to a formal disciplinary procedure and dismissed Mr Sarkar on the basis of the same complaints. The tribunal said that, by dealing with the matter informally, the Trust had implied that the allegations were relatively minor and did not warrant dismissal: to then dismiss based on the same complaints was not a ‘reasonable response’.

When a decision has been made that action, whether formal or informal, needs to be taken, employers need to ensure that their approach is appropriate for the situation and is carried out correctly and fairly.

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