Failure to Include Disciplinary Policy in Tribunal Evidence Did Not Undermine Fairness of Dismissal

What Is the Duty of Disclosure?

As part of the litigation process, each party is under a duty to disclose all available evidence that is relevant to the case, including evidence that supports or undermines their position. The parties will be subject to case management orders requiring them to disclose evidence to one another in advance of the hearing. One evidence bundle is then produced and submitted to the Tribunal. What is notable about the case below is that neither the claimant's contract of employment, nor the Respondent's disciplinary procedure, was included in the bundle.

What Was the Background to the Case?

In the case of Tijani v House of Commons Commission (HCC), Miss Tijani worked as a cleaner for the HCC from 2015 until she was dismissed for persistent lateness in 2019. During the course of her employment she had been warned about her lateness and there was a live final written warning on her file at the time of her dismissal. Despite the multiple warnings she received, she was late a further 43 times, for between two and 30 minutes, between receiving the final written warning and finally being dismissed.

The Tribunal found the dismissal was fair, and Miss Tijani appealed to the EAT. She argued that as the Tribunal had not had sight of the HCC disciplinary procedure, it could not measure the nature and extent of her alleged misconduct, and the potential range of reasonable responses (sanctions) it would have been open to HCC to impose. She also argued that the Tribunal had been speculative in concluding that poor timekeeping is generally an issue of misconduct.

What Did the EAT Decide?

The EAT accepted that it was 'unfortunate' that the disciplinary policy had been omitted from the evidence bundle. No reason was given by HCC for omitting the disciplinary procedure from the evidence bundle. The EAT noted that HCC's counsel attended the appeal hearing with a copy of the procedure to disclose to the judge and Miss Tijani's counsel, however both declined to review the document at such a late stage in the process.

The EAT found that the Tribunal rightly concluded that the dismissal had been fair, despite the absence of the disciplinary policy from the evidence bundle. The EAT had regard to the fact that Miss Tijani had been subject to a live final written warning at the time of her dismissal, and that she had been told that her continued lateness could lead to her dismissal. The EAT therefore dismissed the argument that there was any element of speculation in the Tribunal's findings. Evidence had been given that six other cleaners had not been dismissed because they had improved their lateness. There was no compelling evidence of inconsistency of treatment. Taking all this into account, the EAT upheld the Tribunal's decision.

Why Complying with the Duty of Disclosure is Crucial

In this particular case, there was sufficient other evidence available to enable both the Tribunal and the EAT to find the dismissal was fair. However, it is easy to envisage a scenario where the outcome could have been different, with such a key document omitted from the bundle.

Employers should take care to comply fully with the duty of disclosure. Evidence should be carefully reviewed at exchange and at the stage of compiling the evidence bundle. If either party believes relevant evidence has been upheld, there is then an opportunity to request disclosure, or alternatively to seek an order for specific disclosure from the Tribunal.

For more information on the duty of disclosure, please contact Amaya Hobby in our Employment team on 0117 314 5640, or complete the form below.