The recent Employment Tribunal case of Mr J Linwood v British Broadcasting Corporation sends a clear reminder to employers to carefully manage the performance failures of their managers.
We look at the case and consider the lessons to be learnt.
Brief facts of the case
Mr Linwood was employed as the Chief Technology Officer at the BBC. He was responsible for overseeing the delivery of the digital media initiative (DMI) project. This aimed to create an integrated digital production and archiving system in preparation for the on-demand digital world.
The DMI project was launched before Mr Linwood joined the BBC and was fraught with problems from the outset. The project was scrapped in May 2013 and the technology was written off at a cost of £98.4 million.
The BBC held Mr Linwood accountable for the failure of the DMI project and for the associated wasted costs. He was summarily dismissed in July 2013 on the grounds of gross misconduct and a breakdown in trust and confidence.
Mr Linwood brought an unfair dismissal claim against the BBC claiming that they had closed ranks, singled him out and made him a 'public scapegoat'.
The Employment Tribunal unanimously held that Mr Linwood's claim for unfair dismissal was well-founded. The BBC's executive board had decided that Mr Linwood had to go 'one way or another' at a meeting on 13 May 2013 and there were subsequent emails discussing his dismissal as a foregone conclusion.
The Employment Tribunal was also critical of the disciplinary procedure adopted by the BBC. It held that the BBC had not acted reasonably in treating the misconduct as a sufficient reason for dismissal because the entire disciplinary process was 'profoundly substantively and procedurally flawed'. In particular, the BBC had failed to conduct a reasonable disciplinary investigation.
The issue of compensation for Mr Linwood will be decided at a later date.
This case provides a useful reminder to employers to be careful about how they manage the performance failures of their managers. Employees can bring a claim for unfair dismissal if they have the necessary length of service at the termination date, currently two years.
Cases of seriously poor performance and/or failure to deliver objectives can be dealt with either under a disciplinary process or capability process. In either case a fair process is key and the following points should be remembered, regardless of the level of seniority of the employee involved:
- a full investigation (including a meeting with the employee) prior to any dismissal meeting is a fundamental part of a fair dismissal process
- following the investigation, the employer should set out specific allegations to be addressed at the hearing and any general allegations should be backed up with clear and specific examples
- the employee should be given sufficient time to consider all information to be relied on by the employer in considering the dismissal. Mr Linwood was given just a few days to consider 'thousands of emails' and the hearing was brought forward when he asked for additional time to consider the documents
- internal documents and emails are disclosable in an Employment Tribunal and employers should make sure senior managers do not inadvertently discuss or comment on the case in emails
- in all but the most serious cases of gross negligence, an employee should be given the opportunity to improve their performance.