Case
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‘Fair’
but not ‘perfect’
South West Trains Limited v McDonnell, EAT, 9 June 2003
Minor
errors in a disciplinary process are obviously unfortunate, but need not
undermine the whole process if it is otherwise fair.
McDonnell,
a trade union recruitment secretary, was dismissed for intimidating and
harassing a colleague. He claimed his dismissal was automatically unfair
because of his trade union membership/activities. Despite being satisfied that
McDonnell’s conduct was the principal reason for dismissal, the tribunal
nonetheless decided that flaws in the company’s procedure rendered his
dismissal unfair.
The
three principal errors identified were that the company had: failed to follow a
collectively agreed procedure for disciplining trade union officials;
interviewed McDonnell before any other witnesses; and failed to require any
witnesses to attend the disciplinary hearing to be cross-examined. The company
appealed, successfully.
The
Employment Appeal Tribunal found that the tribunal’s conclusion that the
process was fatally flawed was not justified. The order in which the witnesses
were interviewed did not have any bearing on the eventual decision to dismiss,
and there was no requirement for witnesses to be present at the disciplinary
hearing.
As
a result, the unfair dismissal decision could not stand and would need to be
remitted to a fresh tribunal. The key questions which the tribunal had omitted
to address were whether the company had actually breached its own procedure and
if not, whether the decision to dismiss McDonnell was within the range of
reasonable responses.
He
who hesitates is lost?
Cow v Surrey and Berkshire Newspapers Limited, EAT, 7 March 2003
Following
a business reorganisation affecting her working arrangements, Cow initiated the
company’s grievance procedure. Throughout the five-month grievance and appeal
process she worked according to the new arrangements. Three weeks after her
complaint was dismissed, however, she resigned and brought a claim for
constructive dismissal.
The
tribunal rejected Cow’s claim, taking into account that she had had a number of
months in the new job. It concluded that during the grievance process she must
have contemplated what she would do if her grievance was not upheld and that by
waiting a further three weeks to resign, her actions indicated she had accepted
the changes to her contract. Cow appealed.
The
EAT conceded that three weeks was short in terms of delay. However, it was
satisfied that the tribunal had not considered Cow’s three-week delay in
isolation, but looked at the grievance review period. In this period Cow had
continued to work, be paid and received a pay increase. The EAT therefore
upheld the tribunal decision.
The
correct approach is to look at the period of delay as a whole, what occurred
during the three weeks’ delay following rejection of the grievance, and the
overall circumstances during the five-month process.
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