When is a dismissal fair?

April 9, 2009

One of the claims most commonly considered by employment tribunals is unfair dismissal. What is not always clearly understood by those seeking to pursue such claims is the approach that a tribunal will take in determining whether a dismissal is “fair”.

Basic principles

A dismissal will be fair only if it is for one of the six potentially fair reasons referred to in the relevant legislation. These are: conduct, capability, redundancy, retirement, illegality and “some other substantial reason”. This last reason may be relied on where there is a sound reason for dismissal but it does not fit squarely into one of the other grounds (for example, where the employer has found it necessary to change an employee’s terms and conditions and the employee has refused to accept such changes).

In addition, it must be reasonable, in all the circumstances, to dismiss for that potentially fair reason. Relevant factors here will include the fairness of any dismissal procedure followed, including any investigation conducted, and whether the sanction of dismissal was one that a reasonable employer would have applied in those circumstances (that is, whether dismissal was within “the band of reasonable responses”).

Tribunals must not substitute their own view for that of the employer

A common misconception, particularly in misconduct dismissals, is that a tribunal will try to determine whether the employee was “guilty” of the alleged conduct that led to dismissal. This is not the case. The tribunal will simply wish to be satisfied that the employer genuinely believed in the guilt of the employee and that that belief was based on reasonable grounds. Importantly, the tribunal is not permitted to substitute its own view for that of the employer. It is therefore irrelevant whether the members of the tribunal believe the employee to be innocent of the alleged misconduct that resulted in dismissal.

This principle was confirmed in a recent case, considered by the Court of Appeal. An ambulance technician was dismissed for gross misconduct in relation to his actions at an emergency call-out. The employment tribunal that considered the claimant’s subsequent claim of unfair dismissal found that he had been dismissed for a potentially fair reason (conduct). The tribunal went on to find, however, that the employer had not shown that it had a genuine belief in his misconduct based on reasonable grounds in relation to some of the allegations and, further, that dismissal was not a reasonable response given the employee’s long service and previously unblemished record.

The employer appealed to the Court of Appeal, which held that instead of limiting itself to considering the handling of the dismissal and the employer’s belief in the employee’s guilt, the tribunal had introduced its own findings about the employee’s conduct and used those findings to substitute its own view for that of the employer. Instead, the tribunal should have focused on how the employer handled the dismissal – in particular, the genuineness of the employer’s belief in the employee’s guilt, and the reasonableness of the grounds for that belief.

While the Court of Appeal acknowledged that in cases of alleged misconduct, employees will wish to clear their name and will want the tribunal to agree that they are innocent of all the charges for which they were dismissed, it confirmed that this is not the function of the tribunal.

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