Be careful not to jump the gun!

The recent case of Mr J Linwood v BBC [2014] serves as a helpful reminder to employers, not to pre-determine the outcome of disciplinary hearings.

The background to this case is that in April 2009 the BBC appointed Mr Linwood as its Chief Technology Officer. A key part of Mr Linwood's role was the Digital Media Initiative ("the Initiative"), which was a project whereby all of the BBC's programming was to be digitised. The Initiative went from one disaster to the next and in April 2013 was scrapped altogether, by which time it had cost the taxpayer £98.4 million.

At such a huge cost to the taxpayer, questions had to be answered and there was an expectation that someone at the BBC should been seen to take "the blame" for all of the mistakes made during the Initiative… Mr Linwood was that man.

Mr Linwood was dismissed by the BBC and brought a claim for unfair dismissal.

During the hearing, Mr Linwood presented the Tribunal with emails, which were sent prior to his disciplinary hearing, indicating that the BBC had already made the decision that he would lose his job. In some of the correspondence, Mr Linwood's line manager went as far as contacting a recruiter to find a replacement for him. This clear evidence of pre-determination of the outcome of the disciplinary process provided evidence to the Tribunal of unfair dismissal.

In addition to the pre-determination of the outcome of the disciplinary hearing, the Tribunal also found that the Investigating Officer was "unrelentingly and exclusively negatively biased" against Mr Linwood. The Tribunal ultimately found in favour of Mr Linwood, subject to a 15% finding of contributory negligence for Mr Linwood's failings which contributed to the overall failure of the Initiative.

Employers should be careful, even in the most clear-cut of cases, to ensure that the disciplinary process is conducted in a fair and impartial manner. Emails relating to a disciplinary hearing must be disclosed to the employee during legal proceedings and so everyone involved in the disciplinary should be careful what they write. It is easy to become complacent when sending internal emails; however, these emails will still have to be disclosed.

Stating the outcome before the disciplinary hearing will cause an employer considerable embarrassment during a Tribunal hearing and also do serious damage to an unfair dismissal defence.

If you would like anymore information about conducting a fair disciplinary process please contact Stephen Moore.

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