Re: Spring 2014 | Page 46

excuses Dismissal Unfair dismissal and the range of reasonable responses. When an Employment Tribunal is assessing whether an employer has dismissed someone fairly they must not think what they would have done.  Instead they should look at whether the employer’s decision to dismiss fell within the range of reasonable responses to the circumstances that they faced. It is also the case that an employer should not dismiss someone for a single act of misconduct unless the actions of the errant employee could be regarded as an act of gross misconduct.  For an employee to be dismissed for an act of simple misconduct then it is expected that the employee would be on a final written warning.  But what happens if the final written warning is subject to an appeal that has yet be heard and, thus, has the possibility of being waived at an appeal? The recent case of Rooney v Dundee City Council had to address such a problem.  The employee received a final written warning in connection with an incident related to a failure to follow instructions which took place on August 2010.  She received a final written warning after a hearing held in September 2010 which was to remain on her record for 15 months.  Although she appealed the imposition of the warning the appeal hearing was never held. There was a further incident in December 2011.  Again the Employee failed to follow instructions.  After a disciplinary meeting in March 2012 the Employee was dismissed.  The person who made the decision to dismiss was not only aware of the final written warning but was also aware that the appeal on that decision did not get heard.  The Employee appealed the decision to dismiss but was unsuccessful and thus made a claim in the Employment Tribunal. The tribunal felt there was no reason to hear evidence on the reason for the final 44 written warning as there was no reason to think it was inappropriate or invalid.  The tribunal then went on to consider whether the decision to dismiss was fair and especially when there was an appeal outstanding.  The tribunal felt that the decision to dismiss was a decision which a reasonable employer could have reached. The Employment Appeal Tribunal (EAT) had to consider whether the tribunal was entitled to come to that conclusion.  Had the Employment Judge in the Employment Tribunal properly considered all the issues?  If the appeal to the final written warning was outstanding (and for such a long period) surely there was a doubt about whether that warning could be relied on, thus allowing the employer to dismiss for a mere act of misconduct? The EAT endorsed the findings of the Employment Tribunal.  The Employment Judge had noted that the employer had addressed the issue of the outstanding appeal and considered when making the decision to dismiss. The employee was making up for lost ground but did recover its position.  The EAT noted that the Employment Judge felt that he would not have acted in the way the employer did but considered that was not the issue.  The issue was whether, taking into account all of the circumstances, the employer’s actions fell within the band of reasonable responses.  As such the EAT found no fault in the decision of the Employment Tribunal and, thus, the appeal was unsuccessful. The employer would have been better off holding the appeal about the final written warning; it would certainly have saved a great deal of legal costs.  However, this case shows that such errors will not always prove fatal, especially if openly addressed at a later stage. By Martin Williams