Employers Must Exercise Caution in Dismissal Procedures

An employment tribunal found that former BBC technology chief, John Linwood was unfairly dismissed by the corporation.

This was despite the fact that his own conduct over the management of the scrapped Digital Media Initiative, a project to move content previously stored on tape online, contributed to the dismissal.

The main concern for the Tribunal was the BBC’s failure to follow correct procedure during the investigation and the way in which it carried out the dismissal.

Other employers should take note.

Mishandled Employee Disciplinary and Dismissal Process

Mishandled procedure highlighted by the tribunal included:

1. Evidence of parallel communications between parties, including letters from both Mr Linwood and the BBC’s then director of operations, Mr Coles. Mr Linwood’s letter made reference to the options he was presented with, to resign or face dismissal, although Mr Coles’ letter outlining the investigation procedure to substantiate a case for dismissal had not yet been received.

2. Management were looking back over Mr Linwood’s conduct over the course of his four year employment at the corporation in order to find examples of unprofessional behaviour in order to build a case for his dismissal, rather than focusing on his conduct over the time frame that the project ran into difficulties. Little substantial evidence was found.

3. There were discussions about handling decisions in terms of public relations both inside and outside of the corporation in order to prevent leaks of delicate information.

4. Discussions had already begun about the possibility of an interim replacement for Mr Linwood and whether this should be an internal or external candidate. There was email evidence to show that this had been discussed with an external recruitment consultant at a party, who had compiled a list of potential candidates.

5. The date of the disciplinary hearing with Mr Coles was brought forward which meant that Mr Linwood had limited time to read 16,000 documents.

6. The Tribunal also questioned the appropriateness of Mr Coles leading the disciplinary meeting given the content of email evidence.

The Reasoning Behind the Tribunal’s Decision

The investigation into Mr Linwood’s supposed misconduct did not meet the requirements set out in the case British Home Stores v Burchell [1978], namely:

· The employer must reasonably believe that an employee was guilty of misconduct

· This belief must be based on reasonable grounds or evidence

· Reasonable investigation must be carried out in a timely fashion and in accordance with the ACAs code which requires:

- Consistency (employees should know what will happen and when)

- Transparency

- Fair Investigation

- Employees should be informed of the allegations and allowed to put their case

- Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting

- Employees should have the right to appeal any decisions made.

Compensation for Unfair Dismissal

Compensation awards in Unfair Dismissal Case are calculated based on:

• age
• gross weekly pay
• length of service

For specialist employment law advice, including advice on disciplinary and dismissal procedures, please contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848.