Conduct-based dismissals: back to the basics

There are two fundamental rules which employers need to follow when dismissing for misconduct: being clear about expected standards of behaviour and ensuring that those accused of misconduct have a fair chance to defend themselves. These principles are well known, but they can sometimes be overlooked, as a recent Employment Appeal Tribunal decision illustrates.

In this case an Ofsted inspector had been summarily dismissed after a complaint from a school that he had brushed water off a child’s head and shoulder, when a group of children had come in from outside after heavy rain. The school raised a complaint with Ofsted about this, though it was accepted that no safeguarding issues were raised. The inspector was suspended and ultimately dismissed because his actions were “inappropriate and were contrary to Ofsted core values, professional standards and the Civil Service Code”.

Three important documents (including the school’s complaint and the statement taken from the child) were not disclosed at the disciplinary hearing, and only one of these was disclosed at the appeal hearing.

The employment tribunal decided that the dismissal was fair. This ruling has been overturned on appeal for two key reasons:

• Ofsted had not made it clear to the claimant that they were in effect advocating a “no touch” policy. There was nothing in the disciplinary procedure or in the training or guidance he had received to indicate that his behaviour would be regarded as gross misconduct, resulting in immediate dismissal.
• The disciplinary process had also been procedurally unfair, since important material which could have helped his defence was not disclosed to him.

Clearly it is not possible to list every possible instance of misconduct in a disciplinary procedure.  The standard employers are held to was explained by the EAT like this:

“It is not fair to dismiss an employee for conduct which he did not appreciate, and could not reasonably have been expected to appreciate, might attract the sanction of dismissal for a single occurrence.”

That is why paragraph 24 of the ACAS Code of Practice says that employers should give examples of the types of acts which it regards as gross misconduct. While those managing the disciplinary process believed that touching the child in the way the claimant had done amounted to gross misconduct, the EAT concluded that the evidence showed that the claimant could not reasonably have been expected to know that.

This case underlines the need to ensure that expected standards of conduct are adequately covered in the disciplinary procedure or in separate rules. It also emphasises the importance of ensuring employees are not dismissed for a first offence, unless there is reasonable evidence to show that they were aware – or ought to have been aware – that the employer regarded the type of behaviour involved as likely to justify dismissal without notice. In more straightforward misconduct cases this will not be an issue. However in other cases – like the one under discussion – difficulties can arise where the employer is mandating a particular standard of behaviour in circumstances where there is a range of respectable opinion over what is appropriate.