Unfair dismissal

For a dismissal to be fair, an employer must have a genuine belief in an employee’s guilt, based on reasonable grounds. Usually, having reasonable grounds involves a proper investigation. Is this always necessary?

In Radia v Jeffries International, the employee was a managing director of an FCA-regulated financial services company. This is a regulated role which requires the employee to be a ‘fit and proper’ person. He brought a disability discrimination claim against his employer, which he lost. The tribunal judgment said his evidence was misleading and not credible. It also noted that his behaviour as a ‘regulated person’ was of grave concern. When they received the judgment, the employer moved straight to a disciplinary hearing, relying on the tribunal’s findings rather than conducting more investigation. The employee was given opportunity to comment on the judgment at the disciplinary hearing. He was dismissed because his behaviour was not compatible with his regulated role. Did the lack of investigation make the dismissal unfair?

The employment tribunal said no. The employee appealed. The Employment Appeal Tribunal said that there was nothing in statute or even the ACAS code which required an investigation process separate from the disciplinary hearing. The dismissal was fair on this point. However, his dismissal was unfair in relation to his appeal process and that issue was sent back to the tribunal.

In this case is unusual. The relevant facts (the MD’s lack of credibility) had already been documented by the employment tribunal in earlier proceedings. This made an active investigation less of an issue. The FCA rules specifically refer to critique in any tribunal proceedings being relevant evidence on whether someone is a ‘fit and proper’ person. In most cases involving dismissal, an investigation will be an essential part of the fact-finding exercise. Sticking to the ACAS code is always the safest option.

Astons Solicitors
May 2019

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