When might it be reasonable to reopen a closed disciplinary process? Maybe when fresh evidence had unexpectedly come to light, and put the facts in a fresh perspective. Or when the accused had boasted about getting away with it after telling lies. But what about when the employer decides, with hindsight, that more could have been done to test the explanation that led to the accused being let off? Let’s take a look at Oldham v Nottinghamshire Fire & Rescue (“NFR”). 
 
Mr Thomas, a black firefighter, received a picture of a gorilla via Instagram. It was evident that it had come from, to coin a phrase, “…Mr Oldham’s account”. Mr Oldham neither apologised nor explained. A formal investigation took place, and Mr Oldham asserted that his account had been hacked. He cited three other instances. NFR accepted this, and told him that the investigation was over and the case was closed, without a disciplinary hearing. 
 
This was not to Mr Thomas’ liking, Six weeks later, he raised a grievance. Seven months later, a grievance officer was appointed. Mr Oldham was not informed that the disciplinary process had been or might be reopened. Two months later, the published grievance report noted that more could have been done to substantiate the hacking explanation. 
 
Let’s pause. “More could have been done.” It was NFR’s decision not to do more. No smoking gun was found. Best to drop it, give Mr Thomas an apology or explanation, and learn lessons? 
 
Evidently not. A week later, Mr Oldham was suspended. In the two months preceding the subsequent disciplinary hearing, he attempted to find out more from Instagram, to no avail. NFR took no such step. The first disciplinary hearing dwelt inconclusively on the hacking issues. When reconvened, it had obtained some semi-expert evidence that was far from decisive in fixing Mr Oldham with retrospective guilt. However, having taken exception to Mr Oldham’s attitude, and perceived lack of remorse about the picture coming from his account, the disciplinary officer chose summary dismissal
 
In deciding that dismissal fell outside the range of reasonable responses, the tribunal noted the magnitude of the overall delay within a process that had resulted in dismissal 13 months after the complaint, particularly when Mr Oldham had been told it was closed. The first investigation had been conducted by a head of department within a well resourced employer. In circumstances where dismissal could be career ending, the delay was prejudicial. Memories fade. Proper expert evidence could have exculpated Mr Oldham. The dismissal was so unjust as to preclude any speculation about a possible subsequent fair dismissal. 
 
This is not to say that Mr Oldham won a complete victory. The tribunal dropped a broad hint about his award being subjected to a possible contributory fault reduction. His behaviour at the time was considered blameworthy, and potentially consistent with guilt rather than ignorance. 
 
Reopening a closed disciplinary process carries great risks. An independent legal view on the merits and drawbacks may save considerable embarrassment. We can lend a hand. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk . 
 
Share this post:

Leave a comment: