Imagine you’re appointed to conduct a disciplinary hearing into an allegation of misconduct. You’ve never come across the employee before, but the evidence seems pretty clear.
She complains that her manager was biased against her because she complained about compliance issues in the past, but the manager says that those complaints were resolved and have nothing to do with her misconduct.
After a disciplinary hearing, you take the decision to dismiss the employee. The next thing you hear, she’s suing the company for firing her for being a whistleblower.
Court decision relevent to disciplinary hearing
“But I fired her for misconduct,” you might be forgiven for thinking.
Unfortunately, a Supreme Court case last week confirmed that what you knew and what you thought will not stop her winning the claim. It ruled that if a manager decides that an employee should be dismissed for an unlawful reason (such as whistleblowing or trade union activities) but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason and the dismissal is automatically unfair.
Importantly, there is no cap on compensation for such claims. Awards can be eyewatering.
Tricky to avoid difficulties?
This echoes another recent case. A manager who had taken action against an employee for trade union activities manipulated a disciplinary process so as to achieve dismissal. Again, even though the dismissing manager was not motivated by the employee’s union activities, the employee’s claim succeeded.
Avoiding such claims is not straightforward. The situation only arises because of the rogue manager’s malicious deception.
The larger and more complex the organisation, the easier it may be for a manager with a grudge to manipulate the decision-making process while flying under the radar. However, there are some steps that decision-makers in disciplinary and performance management processes can take to mitigate the risks.
It’s crucial to ensure that employees subject to disciplinary procedures (or other procedures that could result in a dismissal) have chance to make representations.
If they raise concerns about their line manager’s motivation (particularly where it relates to whistleblowing, discrimination, trade union activities or health and safety), those concerns need to be investigated.
Start again if in doubt
If it appears that the process may be tainted, it may be better to start afresh and ask an unrelated manager to assess whether there is a case to answer before taking further formal steps.
But perhaps the most important thing is to try and minimise the chances of a manager interfering inappropriately in the first place. Disciplinary procedures should make clear who is responsible for what at each stage of the process and HR should resist firmly if a manager is overstepping the mark.