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In DLA Piper's latest case report, the Employment Appeal Tribunal (EAT) held that, where there are allegations of bad faith against an employer in a disciplinary procedure, they must be put to the employer's witnesses at the tribunal. Failure to do so may render the resulting decision unfair.
The employee worked for the National Offender Management Services as a prison officer from November 2005 until his employment was terminated in August 2013 for gross misconduct.
In January 2013, the employee was one of three officers involved in a planned intervention involving a prisoner, which was recorded on CCTV and witnessed by a number of other employees.
During the course of the incident, the "control and restraint technique" was used because the prisoner refused to follow instructions.
One of the witnesses emailed her line manager and claimed that, during the intervention, the prisoner was repeatedly punched on the back. The employee was suspended as a result.
An investigation was carried out, after which the investigatory manager deemed it appropriate to test the allegation of assault at a disciplinary hearing, where the hearing manager took the view that the employee had used unnecessary force during the intervention and dismissed him for gross misconduct.
The hearing manager did so on the basis of evidence gathered as part of the initial investigation and evidence from an expert on the use of force who reviewed the CCTV footage. He did not, however, gather evidence from the witness who made the complaint, nor the pr