Back

Due to our firm’s annual update, our offices will be closing early today at 4:15pm. We will be open as usual from 9am Friday morning.

Get in Touch Menu

Disciplinary procedure

08 July 2010

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.

 

If you need clear and pragmatic legal advice, we’re here to help so please get in touch.

Contact us

Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
Contact
Nick Cox LLB (Hons)
Consultant, solicitor
View profile
Nick Cox
Related services
Share this article
Resources to help

Related articles

Unearthing the implicit duty of cooperation in commercial contracts

Commercial

In the world of business, contracts are the bedrock upon which deals are built. These carefully crafted documents are a testament to the mutual understanding between parties, outlining their respective…

Richard Holland BA (Hons)
Senior associate, solicitor

Why sole director companies should check articles of association

Corporate

A recent case has highlighted the importance of ensuring a company is incorporated with carefully drafted articles of association, if there is only one director. All limited companies must have…

Helen Howes LLM
Senior associate, solicitor

SCCs: New rules governing cross-border data transfers and data exchanges from the EU and EEA

GDPR & data protection

This September brings change to the use of standard contractual clauses (SCCs) governing data transfers from the EU and EEA. In June this year, the European Commission published two sets…

Kym Fletcher LLB (Hons) Euro
Consultant, solicitor
Contact us