Nip disciplinary problems in the bud

It has always been the received wisdom that boils are best lanced promptly. This also applies to employment problems for underperformance and misconduct.

Shortfalls in performance or conduct should be raised with the employee as soon as they become visible.  This not only allows difficulties to be dealt with before they escalate, but also allows the employee to mount a well-reasoned defence to formal action as matters will still be fresh in their mind.

This did not happen in O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust [2025] EAT 156, where Ms O’Brien was dismissed for misconduct after allegations that she had failed to work her contracted hours and falsely claimed overtime.

Sadly, the Trust did not raise these concerns with her until over a year after the alleged shortfall in attendance was noticed.

In Ms O’Brien’s case her ability to recall events was affected by mental health problems but, even without those challenges, how many of us can remember what we were doing a year ago?

The dismissal was held to be fair by the Tribunal, but the decision was later reversed by the EAT. The outcome of the EAT decision was that Employment Tribunals should consider whether or not delay had impacted on the fairness or otherwise of a disciplinary decision.