Tribunal Report: Dismissals for misconduct must be carried out fairly

A recent case shows the importance of disciplinary procedures complying with the Acas code, says Victoria Willson

Victoria Willson
Victoria Willson

The recent employment tribunal judgment in the case of Thornalley v Linkage Community Trust serves as a useful reminder of the tribunal's approach to misconduct dismissals.

The story

Linkage Community Trust provides education, care and employment services for people with learning disabilities. Karen Thornalley was employed as a transition coordinator and her duties included investigating the possibility of other service providers, such as schools, using Linkage's services. In October 2010, Thornalley and a colleague, Faye Barker, went on a marketing trip to visit 10 schools over two days, with an overnight stay at a hotel.

Allegations subsequently emerged about their conduct on the trip: in particular, the purchase of a large amount of alcohol at the hotel, disruption to other guests and damage to hotel property. The allegations also concerned failure to contact all the schools, to visit all the schools and to keep proper records of the visits.

Linkage commenced disciplinary proceedings against both employees, culminating in their dismissal in November 2010. The reasons for Thornalley's dismissal were that she had brought Linkage into disrepute and had taken an unprofessional approach to the marketing exercise. They both appealed unsuccessfully.

Thornalley brought claims of unfair dismissal and wrongful dismissal. She contended that she was less at fault than Barker and should have received a lesser sanction; that most schools had been visited and it was unnecessary to contact them beforehand or to keep records; and that she should have received notice.

The legal decisions

Misconduct is a potentially fair reason for dismissal. However, such a dismissal must, in all circumstances, be both procedurally and substantively fair. Procedural fairness is assessed with reference to the Acas code. The test for substantive fairness is that the employer had a genuine belief that misconduct had occurred, having carried out a reasonable investigation, and that dismissal was within the range of reasonable responses.

The tribunal found that Linkage met the above criteria and, accordingly, was entitled to dismiss Thornalley without notice. Both her claims therefore failed. Particular factors that the tribunal took into account included that, though Barker was clearly more at fault, Thornalley failed to take a responsible approach (which could have prevented or mitigated Barker's behaviour); her lack of remorse about or ownership of the problem; the particular importance of trust and confidence given the nature of Linkage's work and Thornalley's role with vulnerable people; the greater emphasis on proactive marketing in the context of government cuts; and the particular vulnerability of charities to negative publicity.

Lessons for charities

Charities should have clear written organisational standards; ensure that their disciplinary procedures comply with the Acas code; and clearly document their reasoning as well as their findings, especially in relation to why dismissal was considered the appropriate sanction.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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