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.
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