Insubordination, Small Employers and the Disciplinary Process: avoiding pitfalls
Posted on 5th July 2024 at 14:13
On the day before the General Election, it was reported that former MP Khalid Mahmood – defeated in Birmingham Perry Barr by an independent – had been “ordered to pay ex-girlfriend adviser £11,000 for unfair dismissal”. The trigger for the supposed “sacking for disrespect” was said to be her description of him as “a first class idiot”. Evidently not his week. But was there more to this?
Let us leave aside the fact that over half of the tribunal’s award to the aide Elaina Cohen covered injury to feelings for detrimental treatment following a protected disclosure. The remaining £5,739.99 comprised only 25% of the combined basic and compensatory awards for unfair dismissal, after reductions that took into account the Polkey principle – what real difference did procedural unfairness make – and her contributory fault over a far wider set of background issues.
What key factor made this dismissal unfair?
Mr Mahmood was in the unusual position of being a one man employer. He had the roles of complainant, investigator, conductor of the disciplinary hearing, decision maker, and appeal officer. A state of affairs that would be no different for many a small trader.
However, he also had access to wider administrative resources. The Houses of Parliament provided MPs with HR support, and he had previously instructed an HR consultant. On this occasion, the tribunal concluded, he could have engaged a separate appeal manager as decision maker. His failure to do so took the dismissal outside the range of reasonable responses.
We are reminded of a previous occasion when one of our small business clients could not realistically offer an internal appeal to a dismissed employee. There was no officer more senior than the director who made the decision. We were called upon to speak to the employee about the grounds for her appeal, listen impartially and neutrally, and produce a report for both parties with a recommendation. In effect, we viewed everything through the eyes of a judge, and were able to advise that there were reasonable grounds to uphold the original decision. The matter was taken no further.
Are you a small employer facing the need to handle a disciplinary process? Are you concerned about how to be seen to be fair? Would early outside help be useful? Get in touch. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: contributory fault, detrimental treatment, disciplinary hearing, Polkey principle, protected disclosure, range of reasonable responses, Unfair dismissal
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