Sarkar v West London Mental Health NHS Trust
In cases of minor misconduct, employers sometimes make use of policies aimed at negotiation and conciliation, rather than discipline. In Sarkar v West London Mental Health NHS Trust, the Court of Appeal said that one of the factors that tribunals can take into account when considering the “range of reasonable responses” test is whether the employer was inconsistent in their approach to the severity of the conduct in question.
The Trust received a number of complaints about the behaviour of Dr Sarkar, a consultant psychiatrist, towards some of his colleagues which had left them 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.
The most severe sanction under the policy was a first, written warning. It agreed with Dr Sarkar that it would use that procedure to address the complaints.
Just as it was coming to a close in mid-May, the medical director unexpectedly said she was going to report Dr Sarkar to the General Medical Council (GMC). As a result, the negotiations under the FBP broke down. Afterwards Dr Sarkar was suspended, partly in relation to those same complaints, and partly to new complaints which were made about his conduct.
Following a disciplinary hearing, he was found guilty of gross misconduct and summarily dismissed. Dr Sarkar claimed unfair dismissal.
Tribunal and EAT decisions
The tribunal agreed with him, saying that dismissal had not been within the range of reasonable responses open to the Trust. By opting to conduct the discussions within the context of the “fair blame” policy, the tribunal said that the Trust must have considered the alleged misconduct to be of a relatively minor nature.
It could not then figure out how the Trust could come to the conclusion that these same offences could also constitute gross misconduct and lead to summary dismissal. It also said that the medical director’s intervention had effectively sabotaged the proceedings.
The employment appeal tribunal (see weekly LELR 127) upheld the Trust’s appeal, however, saying that the tribunal had not answered the key question - whether the decision to dismiss fell within the range of reasonable responses open to the Trust. Instead it had substituted its own view for that of the employer. It also said that just because the Trust had first tried to resolve matters through the FBP did not mean it could not then make use of the full disciplinary procedure.
Court of Appeal
The Court of Appeal has now overturned the appeal tribunal’s decision.
It said that the tribunal was entitled to regard the agreed use of the FBP as an indication of the Trust's view that the misconduct alleged against Dr Sarkar was relatively minor, given its readiness to deal with it under a procedure that could not result in his dismissal.
The Trust had therefore been inconsistent when it found Dr Sarkar guilty of gross misconduct on the same set of facts, resulting in his dismissal and it was a factor that the tribunal was entitled to consider when applying the range of reasonable responses test.
It also said that the tribunal had not substituted its own view for that of the Trust when considering the seriousness of the later incidents. The Trust itself had said they were relatively minor and the tribunal was entitled to accept that evidence and had not gone beyond it.
Finally, it said the tribunal had also been entitled to take the view that referring Dr Sarkar to the GMC had resulted in the FBP process being deliberately sabotaged by the Trust.
This case reinforces the potential gains coming from representatives seeking to agree a maximum penalty in advance. An employer’s self-imposed limit to a disciplinary sanction need not come from a separate procedure. Although this may meet with resistance from employers, in practice most letters setting out the disciplinary charges give some indication of the possible sanction, which themselves stem from disciplinary procedures that usually adopt a ‘tariff’ approach.