In a case where an employer went ahead with a disciplinary hearing despite the absence of the employee, the Employment Appeal Tribunal (EAT) has decided that the employee’s subsequent dismissal was not necessarily fair.

Background

The employee, Dr Nabili, was a paediatrician who her employer, an NHS Trust, discovered had been working for others despite being suspended from her duties. A disciplinary hearing was arranged, but it was scheduled to take place at a time when Dr Nabili would be out of the country visiting her ill mother. Dr Nabili requested that the hearing be postponed, to which the Trust initially agreed. The Trust then changed its mind and decided to go ahead with the hearing without either Dr Nabili or her British Medical Association representative present. The outcome of the hearing was Dr Nabili’s dismissal.

The claim

Dr Nabili brought a claim to the Employment Tribunal arguing that the decision to dismiss her was unfair. The conclusion of the Employment Tribunal was that dismissal was a reasonable sanction and the Trust’s action was fair. Dr Nabili appealed to the EAT.

EAT’s decision

The EAT found that the Employment Tribunal had failed properly to consider the Trust’s reason for proceeding with the disciplinary hearing in Dr Nabili’s absence and whether that had been a reasonable decision to make, taking all the relevant circumstances into account. This would have included whether it was reasonable for the Trust to believe that Dr Nabili’s attendance at the disciplinary hearing would have been futile. The EAT also criticised the disciplinary panel’s reliance on the investigating officer’s negative opinion of Dr Nabili’s honesty without forming its own views on the issue.

“Proper consideration should have been given by the EJ [employment judge] to whether in those circumstances the Respondent did in fact consider that the presence of the Claimant before the disciplinary hearing would be futile and if so whether they were reasonable in so concluding.” Employment Appeal Tribunal

The EAT’s conclusion was therefore that the decision that Dr Nabili’s dismissal was fair had been wrongly decided by the Employment Tribunal. The claim was remitted for rehearing before a different employment judge.