Resorting to mediation does not mean disciplinary process cannot resume
With the revised Acas Code promoting mediation as best employment practice, the EAT have made a timely judgment in Mental Health NHS Trust v Sarkar that an attempt to resolve misconduct issues by mediation did not make a dismissal unfair. Although mediation was tried during disciplinary proceedings, that did not prevent the disciplinary route resuming once mediation had failed.
Dr Sarkar was a Consultant Psychiatrist at Broadmoor Hospital. After a number of complaints had been received about his conduct an investigation concluded that Dr Sarkar ought to face disciplinary proceedings. But, as he had also made complaints about other colleagues, the Trust first tried to resolve matters using its mediation process. Mediation ended when Dr Sarkar refused to accept certain proposals and he indicated that he would prefer his case to be dealt with at a disciplinary hearing. He was summarily dismissed and his internal appeal failed.
A tribunal found the dismissal to be unfair on the basis that the decision to dismiss did not fall within the range of reasonable responses. It took the view that as the Trust had first tried to use mediation, that must have indicated that it considered the misconduct to be minor. On that basis how could the misconduct suddenly become so serious at the resumed disciplinary hearing to amount to gross misconduct and warrant summary dismissal?
The EAT overturned the tribunal’s decision and substituted a finding that the dismissal was fair. The tribunal erred when it focused just on the mediation and had substituted its own view for that of the Trust. To single out one aspect of the procedure without considering it in context of the whole is to commit an error. The fact that the matter was diverted to mediation during disciplinary proceedings did not prevent the disciplinary route resuming once mediation had failed. The simple question was whether the decision was one that, in all the circumstances, a reasonable employer could make. As the Trust’s decision was within the band of reasonable responses in the circumstances, it was fair.
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