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Are small organisations obliged to follow an independent disciplinary appeal panel's findings?

Meredith Hurst Wednesday, April 30, 2014

A problem facing employers with a small management team is that there is often not enough managers available for separate managers to conduct a disciplinary hearing and an appeal hearing.  An independent HR consultant can often be the answer to conduct either the disciplinary or the appeal hearing or both. 

But what happens if the employer disagrees with the finding of the independent appeal?  This was the issue in the case of Kisoka v Ratnpinyotip (trading as Rydevale Day Nursery), which has recently been before the Employment Appeal Tribunal.

Ms Kisoka was a nursery practioner employed by Rydevale, a nursery caring for children up to five years of age and employing 10 staff.   A small fire had been started at the nursery, which Ms Kisoka "discovered". During initial enquiries, the nursery became suspicious about the fire incident and CCTV records showed Ms Kisoka being alone at the nursery and moving around the vicinity of where the fire had started. 

Rydevale invited Ms Kisoka to a disciplinary hearing.  The decision was to dismiss her without notice for gross misconduct on the basis of the CCTV footage.  Ms Kisoka was given the right to appeal,and the nursery arranged for an independent consultancy company to conduct this, although it was not made clear to the consultancy as to whether the final decision would be made by the appeal panel or by Rydevale.  The independent appeal panel concluded that the decision to dismiss should be overturned on the basis that there was not enough conclusive evidence to indicate that Ms Kisoka had started the fire.  Rydevale was unhappy with this outcome and conducted some further investigations of its own which threw doubt onto Ms Kisoka's own evidence.  The appeal panel however continued to stand by its decision.  Based on its belief, Rydevale decided not to implement the appeal panel's decision and upheld the dismissal.

Ms Kisoka brought a unfair dismissal claim.  The Employment Tribunal concluded that, looking at the evidence Rydevale had available as a whole, including Ms Kisoka's movements on CCTV and her failure adequately to explain her movements, Rydevale had reasonable grounds for finding that Ms Kisoka had committed misconduct.  As to whether Rydevale was bound to follow the decision of the independent appeal panel, the Tribunal noted that the test remains whether the employer's conduct was "reasonable in all the circumstances".  It was observed that Rydevale had adequately considered the panel's decision and, based on their own investigations and knowledge of the premises and processes at the nursery, were entitled to uphold the decision to dismiss.  The Tribunal also noted that the nursery was responsible for the welfare of children and its decision not to re-employ Ms Kisoka was reasonable given that the nursery still considered that there were reasonable grounds to consider that she had tried to start a fire. Ms Kisoka's unfair dismissal claim was therefore struck out.

Ms Kisoka appealed to the Employment Appeal Tribunal on the issue of whether Rydevale was entitled not implement the appeal panel's decision.  The EAT agreed with the Employment Tribunal and emphasised that the test was whether the dismissal was reasonable in all the circumstances. 

This case highlights that employers may, in certain circumstances, overturn the decision of an independent body where it is reasonable to do so. 

This does not however diminish the input of an independent consultant in conducting disciplinary or appeal hearings who will be able to assess the situation from a fresh perspective.  Further, an experienced HR consultant will ensure that all relevant information is taken into account, including undertaking any further necessary investigations, before reaching a decision.