Conduct cases

West London Mental Health NHS Trust v Sarkar

In cases of minor misconduct, employers sometimes make use of policies aimed at negotiation and conciliation, rather than discipline. However, in West London Mental Health NHS Trust v Sarkar, the Employment Appeal Tribunal (EAT) said that does not mean that the employer cannot then invoke the formal disciplinary procedure if negotiations under the other policy break down.

Basic facts

Dr Sarkar had worked as a consultant psychiatrist for the Trust since February 2003. The Trust received a number of complaints between September 2006 and January 2007 about his conduct which had allegedly left some of his colleagues feeling “vulnerable and intimidated”.

It initiated discussions under a procedure called the Fair Blame Policy (FBP), which applied to relatively low levels of misconduct but which was part of the disciplinary policy.

However, there were further complaints about Dr Sarkar’s behaviour during the course of the investigation and around the same time he also referred one of the complainants to her professional body.

At the final FBP meeting in mid-May, it was agreed that Dr Sarkar should receive a formal written warning and be moved elsewhere. However, one of his colleagues (Dr Fellow-Smith) then said she was going to report him to the General Medical Council. This was unacceptable to Dr Sarkar and the negotiations under the FBP came to an end.

Following a disciplinary hearing, he was found guilty of gross misconduct and summarily dismissed. Dr Sarkar claimed unfair dismissal.

Tribunal decision

And the tribunal agreed with him, saying that dismissal had not been within the range of reasonable responses open to the Trust.

It reasoned that by deciding to have the discussions within the context of the “fair blame” policy, the Trust must have considered that the misconduct alleged was of a relatively minor nature, as the most severe sanction that could have resulted was a formal written warning.

The tribunal could not then figure out how, once the “fair blame” discussions came to an end, “these same offences can somehow properly come to be regarded as matters of such a grave and serious nature as to constitute gross misconduct and lead to summary dismissal”.

It also decided that the FBP negotiations had been “intentionally frustrated” by the decision of Dr Fellow-Smith to include a referral to the GMC as this was bound to be unacceptable to Dr Sarkar.

The Trust appealed.

EAT decision

The EAT upheld the appeal. The simple question for the tribunal to answer under section 98 of the 1996 Employment Rights Act was whether the decision of the disciplinary panel was one that, in all the circumstances, a reasonable employer would make.

Tribunals have to look at all the relevant circumstances when making that judgement. “To single out one aspect of the procedure without considering it in context of the whole is to commit an error. In our judgment that is what occurred when the tribunal focused upon FBP”.

Although the EAT praised the parties for making use of the FBP, it said that did not mean the Trust was “precluded from raising the matter afresh within the formal tramlines of a disciplinary procedure” if it did not work.

As none of the parties had been obliged to use the FBP, the EAT said it would not make sense for the Trust to agree to use it “if by doing so it burns its boats on achieving resolution through the full disciplinary procedure.”

In any event, Dr Sarkar had not argued at either the disciplinary or the appeal hearings that the Trust could not move from the FBP into a disciplinary procedure which allowed for dismissal. Indeed, the policy contained an escalation clause which allowed the Trust to do so if the circumstances dictated.

Finally, the tribunal had also been wrong to conclude that Dr Fellow-Smith intentionally frustrated and sabotaged the FBP.