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
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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