The CA's decision in Adeshina v. St George's University Hospitals NHS Foundation Trust and ors serves as a useful reminder to employers of the possibility that an internal appeal can cure procedural defects in an original decision to dismiss.

Background

Allegations of misconduct were raised against Ms Adeshina (a pharmacist in the Prison Service) including for unprofessional and inappropriate behaviour in relation to the institution of a Central Pharmacy Unit at HMP Wandsworth and the related organisational change. Ms Adeshina had a leading role to play in this project. However, complaints were subsequently made by colleagues about her attitude towards it. A disciplinary process commenced, which led to Ms Adeshina's eventual dismissal for gross misconduct. However, there were a number of procedural failings throughout the disciplinary process. For example, part of the decision to dismiss for gross misconduct was based on the employee's unprofessional behaviour during a two-day senior management meeting. However, allegations relating to her behaviour on the second day of the meeting had not been put to the employee during the disciplinary process.

Ms Adeshina appealed the decision. The appeal was a full rehearing of the matter. However, contrary to the Acas Code, one of the members of the appeal panel was more junior than the manager who had conducted the initial disciplinary process; in addition the appeal panel was comprised of a senior manager who had been a mentor to a victim of one of Ms Adeshina's alleged acts of unprofessional and inappropriate behaviour and had also been involved in a policy document which formed part of the case against her.

According to the non-statutory Acas Code, so far as is possible, an appeal should be dealt with impartially by someone not previously involved in the case. The Acas Code also recommends that the person conducting an appeal should be more senior than the person responsible for imposing the disciplinary sanction in the first instance. It should certainly not be someone less senior, who might simply defer to the decision of his/her superior.

The appeal panel upheld Ms Adeshina's dismissal. Soon after, Ms Adeshina brought a number of claims (unfair dismissal, race discrimination and wrongful dismissal) against her employer. The Employment Tribunal dismissed the claims and held that, although there were defects in the initial disciplinary process, these flaws had been corrected by the employer on appeal.

The EAT's decision

Ms Adeshina appealed the decision, but the EAT found that:

• the failure to put all allegations to the employee in the first stage of the disciplinary process had been cured by the appeal, which was a rehearing, rather than a review;
• the appeal panel contained two other members who were senior, as well as an independent adviser; and
• the involvement of the panel member in a previous issue had been minor and had taken place 18 months previously.

Further, in relation to the last bullet point, the EAT acknowledged the reality that senior managers will have involvement in the management of a number of employees and may also sit on disciplinary panels in which those employees might be involved. It would be both unworkable and undesirable for senior managers to avoid these connections. Prior dealings with an employee, without something more which suggested bias, could not render the dismissal unfair.

The CA's decision

Ms Adeshina appealed to the CA and her appeal was dismissed. The CA upheld the EAT's finding that Ms Adeshina's poor attitude to organisational change in the workplace was sufficient to result in dismissal for gross misconduct.

What does this mean for employers?

The points arising out of the CA decision are largely fact sensitive. However, the points of principle arising from the EAT's decision remain good law as they were not challenged before the CA. The EAT's decision in Adeshina demonstrated that procedural defects in an initial hearing may be remedied on appeal, provided that the appeal is sufficiently comprehensive. Whether this requires the appeal to be in the form of a rehearing, rather than just a review of the original decision, has not been entirely clear. Following Adeshina, if an employer is seeking to remedy any procedural defects or omissions, it would be prudent to conduct an appeal as a rehearing.

The case also highlights a practical difficulty that some employers may encounter: the question of who should hear an appeal. It is good news for employers that the EAT adopted a pragmatic approach, which took into account this challenge, rather than a strict interpretation of the Acas Code. Nonetheless, we recommend that employers should consider who should hear an appeal from an early stage and ensure that – if at all possible – these individuals are not involved in any way in the disciplinary process beforehand and are of a more senior level than the original decision maker. Alternatives may be to involve an independent external person in the appeal. Note that this in itself can lead to challenges over their precise remit, but it can work successfully if carefully and properly framed.