In Earl Sutherland v London General Transport Services Limited, an “abusive and threatening” manager succeeded with his unfair dismissal claim after the tribunal ruled he faced a flawed disciplinary process. While his conduct constituted gross misconduct at work, providing a potentially fair reason for dismissal, his employer’s failures prevented this from being the case.
Below, we examine precisely what transpired and uncover why the employer’s disciplinary and grievance procedures were found to be unfair. We also explore ACAS’s guidance on conducting disciplinary meetings and outline the steps employers should follow to avoid potential penalties.
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How Flawed Disciplinary Procedures in the Workplace Can Turn Fair Dismissals Unfair
Mr Earl Sutherland began working for London General Transport Services Limited, which traded as Go-Ahead London, on 30 August 2011. He began as a senior vehicle engineer before being promoted to service centre manager in January 2016.
Throughout his employment, Mr Sutherland made several formal complaints and faced more than one disciplinary process between 2019 and early 2022. In December 2019, he was subject to an employee disciplinary procedure, which resulted in him being demoted. However, after a successful appeal in February 2020, the decision was overturned, and Mr Sutherland was reinstated.
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Then, on 13 April 2022, Mr Sutherland was involved in an altercation with a junior colleague, Mr Michael Stone. Following the incident, Mr Stone raised a complaint, and Mr Sutherland was subsequently dismissed for gross misconduct in the workplace after disciplinary and grievance procedures took place.
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Mr Sutherland appealed this decision, but he was ultimately unsuccessful. As such, after going through ACAS early conciliation, he brought claims to an employment tribunal in October. Among them, he claimed unfair dismissal, race discrimination, and victimisation.
Tribunal Highlights Failures in Disciplinary Process
Following proceedings, the tribunal began by determining whether Mr Sutherland had been unfairly dismissed. They started by establishing that the reason for dismissal was his “abusive and threatening behaviour” during the altercation with Mr Stone. Looking at CCTV and witness reports, they discovered that Mr Sutherland had been aggressive toward the junior colleague and shouted “f**k you” at him.
The tribunal stated that Mr Sutherland’s conduct “fell below the standards reasonably expected” and amounted to gross misconduct at work. With this in mind, they explained how dismissal was “potentially fair in the circumstances”.
However, while dismissal may have been a fair response, given the established grounds for gross misconduct, the tribunal noted significant procedural shortcomings in the disciplinary process. Notably, the junior colleague wasn’t made accountable for his insubordination during the workplace disciplinary procedures. Furthermore, Mr Sutherland’s potential mitigating circumstances for his conduct weren’t adequately explored, and the appeal panel lacked impartiality, as members had previously dealt with him.
Thus, despite the dismissal being a potentially reasonable response, the unfair gross misconduct procedure rendered it unjust. The tribunal concluded, “Considering the clear procedural deficiencies and complete absence of an impartial appeal, Mr Sutherland’s dismissal was fundamentally procedurally unfair”. Mr Sutherland’s other claims were all dismissed.
Mastering Fair Discipline: A Guide to ACAS Tips for Handling Gross Misconduct in the Workplace
A disciplinary process gives an employer a formal measure to address misconduct and capability issues. The Advisory, Conciliation and Arbitration Service (ACAS), a key resource supporting millions of employers and employees, provides essential guidance on handling such disciplinary and grievance procedures.
According to ACAS, employers should always try to avoid formal measures and resolve matters informally where possible. Such matters could be handled through an informal chat, where improvements or training and development plans may be agreed upon. ACAS explains that employers can find a quick and easy solution by taking such steps.
When defining misconduct, ACAS outlines that it is “inappropriate behaviour” that breaches the rules established by an employer. Examples include bullying, harassment or unexplained absences.
Actions considered more serious are defined as gross misconduct in the workplace. ACAS states that following a full and fair disciplinary meeting, such behaviour may warrant immediate dismissal. Had the employee disciplinary procedure in the above case been procedurally fair, the insubordination would have provided grounds for gross misconduct, meaning dismissal could have been reasonable. Other examples of gross misconduct at work include fraud, physical violence and gross negligence.
Grounds for Gross Misconduct? What to do Next
If an employer wants to undertake a gross misconduct procedure, ACAS advises that they inform the employee immediately in writing. To ensure the disciplinary process is fair, the employer should follow their own procedures and the ACAS Code of Practice. Furthermore, they must carry out a thorough investigation to get a complete understanding of what’s transpired.
If it’s deemed that a disciplinary hearing concerning gross misconduct at work is required, this should occur swiftly while still providing the employee enough time to prepare for it. The employee should be informed of their right to be accompanied during the hearing, and when it occurs, both sides should be allowed to make their case.
Ensuring the Disciplinary Process was Fair
Once the gross misconduct procedure has concluded, the employer must make a decision based on several factors. Among other things, they should consider the findings they’ve gathered, what’s reasonable and fair, and how they’ve dealt with similar incidents previously. Subsequently, they must act accordingly and inform the employee of their decision immediately.
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Finally, when the decision from the employee disciplinary procedure is provided, a right to appeal should be given. If the employee appeals, ACAS explains that the employer must scrutinise their previous decision. The employer must ensure that the procedure they followed and the outcome they provided was fair. If either wasn’t, they must rectify this error.
What is a Typical Disciplinary Process?
To avoid penalties, employers must follow a fair and consistent employee disciplinary procedure that adheres to ACAS guidelines. Key practices include:
- Conducting thorough investigations
- Ensuring impartiality
- Adhering to the ACAS Code of Practice
Different Stages of a Disciplinary Process
To minimise risks and help ensure fair outcomes for the employer and employee, a structured disciplinary process should be followed. Typically, a gross misconduct procedure includes the following steps:
- Informal Resolution – Where an attempt is made to address an issue informally. This may occur if the employer discusses with the employee to identify areas for improvement.
- Formal Investigation – If informal methods are ineffective or inappropriate, a formal investigation should be conducted to assess the nature and extent of any alleged misconduct.
- Disciplinary Meeting – Should evidence support further action, a disciplinary meeting would be held, where both sides present their cases.
- Decision and Outcome – Based on the hearing and gathered evidence, the employer would make a decision. If it involves disciplinary action, this must be proportionate to the misconduct.
- Appeal – Employees should be given the right to appeal the decision. To ensure fairness, this appeal should be reviewed by someone not involved in the initial decision.
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