Employer Failure to Follow Fair Process Resulted in Unfair Dismissal (M Barbrook V New City College Ltd)

In the case of M Barbrook v New City College Ltd, the failure to follow a fair procedure before dismissing an employee with an unblemished disciplinary record resulted in unfair dismissal.

The Facts in M Barbrook v New City College Ltd

Mr M Barbrook (“The Claimant”) commenced employment with Havering Sixth Form College on 1 September 1997 as a Tourism Lecturer. He was later made the Course Leader for Sport. He then transferred to New City College Limited under the Transfer of Undertakings (Protection of Employment) Regulations (‘TUPE’) on 1 August 2019.

In July 2017, the Claimant was diagnosed with prostate cancer and had a radical prostatectomy in September 2017.  This resulted in him being on sick leave between September 2017 to April 2018. He was also absent from work for a few days following the death of his father in December 2018.

In March 2019 he had a 1-week absence caring for a family member, and from January 2020 to April 2020 he had a 6-week absence from work which was precipitated by a family member suddenly becoming acutely unwell.

Claimant Suspended Based on Multiple Allegations

On 3 November 2020, the Claimant was suspended on full pay, pending investigation into allegations of gross misconduct. The allegations against the Claimant were that he:

  • cancelled Friday morning coaching sessions;
  • falsified registers for Friday morning coaching sessions;
  • left work early without permission and;
  • failed to provide students with their allocated teaching hours.

On 22 January 2021, Mr Araniyasundaran, the Deputy CEO of New City College, wrote to the Claimant after a disciplinary hearing on 15 January 2021, that he was being summarily dismissed on the grounds of gross misconduct for the following reasons:

  • that on at least two occasions, namely the 9th and 16th of October 2020 the Claimant had moved sports lessons to an earlier time without the permission of his line manager and had failed to take registers of these sessions on the day;
  • that he had cancelled several coaching sessions without permission; and
  • that he falsified registers to suggest that these coaching had taken place and were fully attended.

Unfair Dismissal is Appealed but Not Upheld

On 28 January 2021, the Claimant submitted his appeal against the decision. The Claimant raised concerns about the integrity and fairness of the process and the failure to look at the practices that Havering Sixth Form had adopted. He argued that they need to obtain line management approval or approval from senior management (e.g. Deputy Principal level) to work through scheduled breaks or change the lesson times. This was never required at Havering Sixth Form.

On 16 February 2021, the Claimant was informed his appeal had not been upheld. Subsequently, on 20 May 2021, the Claimant presented his Claim to the Employment Tribunal arguing unfair dismissal and disability discrimination as well as payment of notice pay and holiday pay.

The Claimant argued that in the course of his employment, he had been unfairly dismissed and subject to:

  • An unfair disciplinary process,
  • A flawed appeal process,
  • Disability discrimination.

The Decision of the Employment Tribunal

The Employment Tribunal ruled that the employee had been unfairly dismissed. They further found that the process had been unfair for several reasons. The Claimant had not been provided with key documents and was only given a one-page response to an 8-page letter of appeal submitted by the Claimant.

The tribunal also found that the Respondent had not given the Claimant’s appeal due consideration. They found this to be unfair “given the Claimant’s longstanding service, unblemished disciplinary record and demonstrated little care for an employee that was unwell with stress. The Tribunal felt that had a fair procedure been adopted the Claimant would not have been dismissed, rather he would at most, have received a warning and possibly been offered training on any revision of the practices of the Respondent.

They also found that there had been a breach in the employment contract in respect of his notice pay. His conduct did not amount to a repudiatory breach of the employment contract, and he was entitled to 12 months’ notice pay.

The Employment Tribunal did not uphold the Claimant’s claims that he had been discriminated against based on his disability. They found that the impact of any impairment for anxiety and depression without medication did not amount to an impairment having long-term substantial adverse effects on the claimant’s ability to carry out normal day-to-day activities.

Our Lawyers View

Steve Norton, lawyer at Redmans says, “This case shows the importance for employers to follow a fair and consistent procedure that stands up to scrutiny when picked apart at subsequent legal proceedings brought by a dismissed employee.

In this case, the procedure was flawed with inconsistencies in the way the evidence was gathered and used, and the appeal process was found to be adequate along with the way the Claimant’s grievance was handled resulting in a finding of unfair dismissal.”

If you believe you were dismissed unfairly, contact us today. Redmans Solicitors are expert employment lawyers and can assist you through the legal process. By contacting us, we can assess the validity of your unfair dismissal claim and advise on your possible next steps.

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