Showing that an employer has acted procedurally fairly is often
key to a successful defence of an unfair dismissal claim.
Retirement Security Ltd v Wilson is an example of a case
in which procedural defects in an investigatory meeting were
sufficiently serious to amount to a breach of the implied duty of
trust and confidence, entitling the employee to resign.
The employee was engaged as a manager of a retirement community in
which older people lived independently. Managers who reported to
her accused her of potentially serious misconduct and her manager
invited her to an investigatory meeting. However, she was only
given 24 hours' notice of the meeting, not given information
about what the meeting was to discuss except a bullet point list
containing allegations such as "attempted theft" and her
(unrequested) "companion" subsequently took the role of
Chair of the meeting. The employer itself described the meeting as
an "ambush". After the meeting, the employee resigned
because she had concluded that the employer had already decided
that she was guilty of misconduct without giving her a fair hearing
or proper sight of the evidence. The tribunal upheld her
constructive unfair dismissal claim.
The EAT upheld the tribunal's decision that there had been a
breach of the implied duty of trust and confidence and that the
employee had resigned in response. Although the ACAS Code on
Disciplinary and Grievance procedures does not require exactly the
same standards of procedural fairness and natural justice in
relation to investigations as it does in relation to formal
disciplinary proceedings, that was beside the point. Each case
depends on its particular circumstances and whether the employer
has acted without reasonable and proper cause in a manner that is
likely to destroy or seriously damage the relationship of trust and
confidence. The conduct of the investigation meeting in this case
was so flawed that it amounted to such a breach and the employer
had not advanced a case that the dismissal was for a potentially
fair reason.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
