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Fair dismissal despite employer's failure to follow independent panel's decision on appeal

15 March 2014

In Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) UKEAT/0311/13, the Employment Appeal Tribunal (EAT) held that an employer who had dismissed an employee for gross misconduct was not required to follow the decision of an independent panel, who had heard the employee's appeal and overturned the employer's decision to dismiss. The fact that the employer did not implement the panel's decision did not render the dismissal unfair.

Miss Kisoka worked as a nursery practitioner at Rydevale Nursery from 2008 until her dismissal for gross misconduct on 24 August 2011. Her employer believed that she had started a fire at the nursery and relied on CCTV footage, which it said demonstrated that Miss Kisoka was the only person who could have been in the vicinity of the fire at the relevant time.

Miss Kisoka appealed the dismissal and because of its small size, Rydevale arranged for an independent appeal to carry out the appeal. The panel overturned Rydevale’s decision, on the basis that there was insufficient evidence to suggest that Miss Kisoka did start the fire. Rydevale were unhappy with the independent panel’s decision and decided not to follow it. Miss Kisoka brought a claim for unfair dismissal.

The tribunal at first instance rejected Miss Kisoka’s claim and said that the dismissal was fair. The tribunal found that Rydevale had reasonable grounds for finding that Miss Kisoka had committed misconduct and they conducted a reasonable investigation. The tribunal concluded that Rydevale was entitled to deviate from the panel’s decision.

Miss Kisoka appealed and the EAT dismissed the appeal on the basis of the following:

  • Rydevale was not bound by the panel’s decision

The EAT held that the tribunal was right to consider all of the circumstances and the Judge was entitled to conclude that the procedure was fair and the employer’s decision was reasonable. In particular, the EAT highlighted that Rydevale was responsible for the welfare of children and in doing so, had a genuine concern about re-engaging a member of staff where they had grounds for suspecting that Miss Kisoka had tried to start the fire.

  • Departing from the panel’s decision did not stop Miss Kisoka from being given an effective appeal hearing

The EAT held that the tribunal judge could not be criticised for finding no unfairness and that there are “no fixed or inflexible rules”, which apply to cases such as this. The Judge was entitled to consider the size and resources of Rydevale and that it was not always practicable for all employers to take all the steps set out in the Acas Code of Practice on disciplinary and grievance procedures. Rydevale tried, in good faith, to involve an independent appeal panel and there was no legal requirement for Rydevale to have done things differently. The EAT held that there had been no error of law.

This case shows that an employer who has outsourced its appeal process to an independent panel is not always obliged to follow the panel’s subsequent decision making. However, this does not mean that employers may simply disregard appeal decisions. This case was decided on its facts and on the particular circumstances of the employer. There were several findings of fact that helped the employer including the reasonableness of the investigation, the lack of terms of engagement between the employer and the panel, the employer’s size and that there was no legal requirement to outsource the panel.

Jennifer Cooper
Barlow Robbins