Dismissal proceedings – importance of the invitation to hearing letter.

Dismissal proceedings – importance of the invitation to hearing letter.

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4 May 2018

BA dismissed Mr Sangha after a lengthy period of sickness absence, but in failing to write a simple letter an otherwise fair dismissal was ruled unfair and Mr Sangha picked up nearly £20k compensation. You’d think BA’s HR would be decent enough not to have fallen over such a simple hurdle, but let’s look at what we can learn from their mistakes.

Mr Sangha started working for BA as a Logistics Agent in 1995. His sickness absence was always poor but for a 5 year period between 2008 and 2013 it was markedly worse, he missed up to 99 shifts per year.

In December 2014 he was signed off as long term sick having sustained injuries at work and in October 2015 was signed off again with an eye infection. BA’s Occupational Health advisors said that he was fit to return, Mr S disagreed but his own specialist also said he was fit, provided he didn’t drive at night. Mr S continued to protest his inability to work and remained off work. In December 2015 BA invited him to a disciplinary hearing and in that hearing he was dismissed and his subsequent appeal failed.

On the face of it that seems fair enough doesn’t it? Well yes, apart from one small detail, a detail that rendered the dismissal unfair and resulted in a Mr S picking up another £20K of BA’s money (the award would have been £29K but for Mr S’s uncooperative conduct during the investigation by delaying disclosing medical documents in his possession.)

So what was the £20K detail? ACAS codes make clear that if you are inviting an employee to a hearing at which they might be dismissed, you need to tell them that dismissal could be an outcome. And BA didn’t.

One has a certain sympathy in this case with BA, but the need to make an employee aware of the potential severity of disciplinary outcomes is a well known one. It is standard practice to warn an employee of the possibility that they may be dismissed and a summary of the reasons why, in this case presumably ‘a persistent refusal to attend work when otherwise deemed to be fit, and otherwise not cooperating in a timely manner with our reasonable efforts to investigate your capability to work.’

Tribunals will tend to come down harder on large employers with decent resources, but given that this was such a basic error it’s hard to see how any employer would have escaped some penalty. Noteworthy was the tribunal’s decision to reduce Mr S’s award by a third (the maximum available reduction at the time) to reflect his lack of cooperativeness.

myHRdept will prepare pre and post disciplinary letters and will guide managers through every step of the process. We will also attend hearings and conduct investigations if requested.

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