Case Update – Unfair Dismissal
A look at two recent Employment Appeal Tribunal (“EAT”) cases highlighting the challenges that still arise in relation to conduct dismissals, and which can lead to prolonged litigation.
St Mungo’s Community Housing Association v Finnerty – Reasonable to dismiss?
An employee worked for a housing association providing social housing, as a Housing Management Co-Ordinator. An incident arose with a resident who was facing eviction, in the course of which violence broke out, knives were produced, and the police were called. The Claimant was not charged with any offence (the resident was convicted), but an examination of CCTV footage caused the employer some concern.
The employee was asked to attend a disciplinary hearing to face 2 allegations:
- Having been the first person to resort to violence – the CCTV showing him running at and pushing the resident.
- Having dishonestly filled in an incident report form which failed to acknowledge these actions.
The employee advised that there had been some considerable provocation from the resident, including threats of violence and death, and the employee was aware that the resident had a history of threatening people with knives. The CCTV footage was silent, so the employer could not hear what was said.
The employer made limited attempts to contact a postman who witnessed the incident.
The employer upheld the allegations and dismissed the employee, despite his lengthy service. An internal appeal was rejected.
An employment judge upheld the employee’s unfair dismissal claim, finding that dismissing the employee had been outside the “band of reasonable responses” and therefore not something a reasonable employer would have done – it should have been a final warning at worst. This was despite finding that the employee’s actions were “not perfect” and “not ideal” and that there was a lack of a proper explanation for why the incident report form had not contained the proper version of events.
The employer appealed to the EAT, and the appeal was upheld on the basis that the employment judge had substituted his view for that of the employer. He had referred at length to his impressions of the evidence – the CCTV footage, how the employee must have been feeling, how understandable it was that the employee acted in a particular way. He was in effect evaluating the evidence that the employer considered at the disciplinary hearing. However, this is not the role of the employment tribunal – it is not for the tribunal to assess the evidence and reach judgement either on the employee’s guilt or on what penalty should be imposed. Rather, the tribunal must assess the employer’s actions, and decision, and whether that falls within the “band of reasonable responses”. In this case, while the tribunal judge had used the wording for the correct legal test, the wider judgment showed he had formed his own view about what the employer should have done.
This is a key aspect of the tribunal process that is often difficult to understand – an employee may be able to “prove” at the tribunal hearing that he was innocent of the alleged misconduct, but that is largely irrelevant and the dismissal could still be fair. Likewise, an employer may be able to prove guilt, but the dismissal could still be unfair.
The focus is on whether the employer followed a fair procedure, formed a reasonable belief on reasonable grounds, and whether a reasonable employer could have dismissed. A proper procedure is vital.
Ward v Dimensions (UK) Ltd – Impartiality of Appeal Hearer
An employee was accused of making a threat to a colleague to the effect that he had a gun with her name on it. The employee denied this but was dismissed by the employer. An internal appeal was rejected.
The employment tribunal rejected the claim of unfair dismissal, however, the employee appealed to the EAT. One key issue on appeal related to the fact that the manager who heard the internal appeal had had some previous involvement in the case – he had suspended the employee and had authorised the bringing of the disciplinary charges. He had also had a conversation with the alleged victim at an early stage and suggested that she should call the police. It was alleged that his prior involvement meant that he was not impartial and not an appropriate person to hear the appeal. The Claimant argued that the manager had formed a view of the employee’s guilt already. As such, (it was alleged) the process was flawed and the dismissal unfair. It is well known that an unfair appeal process can make the dismissal unfair overall, even if there is nothing to criticise in the initial dismissal decision.
The employment judge had decided, though, that these issues did not make the dismissal unfair – the appeal manager made a genuine and proper decision, he was not influenced by his earlier involvement in the case, and any other manager would have reached the same decision anyway.
The EAT considered this argument carefully, noting that the appeal manager was only one of the managers involved – another manager had carried out the investigation and a third had chaired the disciplinary hearing. There was no suggestion the appeal manager had interfered in these processes. It could not be concluded that he had formed a view on the employee’s guilt just because he had suspended the employee and authorised the bringing of charges.
The EAT decided that the employment judge had acted properly in considering this issue and in concluding that the involvement of that manager at appeal stage did not make the dismissal unfair, even though the company was large enough to have found someone else to hear the appeal. The employment judge was entitled to reach that conclusion, having heard the evidence and so the employee’s appeal to the EAT on this point was rejected.
While this decision went in favour of the employer, it is important for employers to ensure, as far as possible, that the managers assigned to chair disciplinary hearings and appeal hearings have not been previously involved and have not done anything to suggest they have formed the view that the employee is guilty. In smaller organisations, of course, this is more difficult, and an employment tribunal will recognise that. We always advise that at the outset of a disciplinary process, an employer should consider who will deal with each stage – the decision to suspend, the investigation, the brining of “charges”, the disciplinary hearing, and the appeal.
Conclusion
Both of these cases highlight the importance of a proper disciplinary process and being able to show an employment tribunal that the employer has acted reasonably at all stages. It is vital to get the procedure right, or an employer risks a finding of unfair dismissal.
We have decades of experience of advising our employer clients daily on this type of issue, and a track record of successful outcomes in cases where employers’ processes are challenged at tribunal.
Contact our expert team for advice on following a proper disciplinary process.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
