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Often I find myself explaining that the “unfair” in unfair dismissal relates above all else to the employer’s processes leading to the decision to terminate an employee’s employment.  Understanding this enables employers to take steps which can increase the chances of defeating an employee’s claim.

This morning I read a very recent Employment Appeal Tribunal decision, Ministry of Justice v Parry UKEAT/0068/12/ZT.  My eye was caught by paragraph 10, in which Mr Justice Langstaff, President of the Employment Appeal Tribunal, succinctly reminds us of the analysis that an Employment Tribunal should carry out in determining whether an employee has been unfairly dismissed for misconduct:

Surprisingly for a conduct dismissal, the analysis by the Tribunal did not address in turn the issues to which case law has established a Tribunal should pay regard: whether the employer had a genuine belief that the employee was guilty of the misconduct alleged; whether that was based on reasonable grounds; after a reasonable investigation; and whether the decision to dismiss was within the range of reasonable responses open to an employer in respect of the misconduct. 

That paragraph contains the legal analysis in a nutshell,especially following dismissal for gross misconduct.

It is a common misconception that an Employment Tribunal looks at whether the employer “got it right” in terms of whether the employee did or did not do whatever it was that he was dismissed for. That is not what the Tribunal does.   Only in the most exceptional cases will a Tribunal go behind the employer’s decision in that respect.

What a Tribunal wants to see is whether the employer followed reasonable and fair investigation and disciplinary processes.   If at all possible (and this may be difficult for the smaller employers) the investigation should be carried out by someone other than the person making the decision at the disciplinary meeting. The investigation should be as thorough as is necessary in the circumstances.  The person conducting the investigation should do so with an open mind: it is possible that when the evidence has been gathered he may conclude that proceeding to a disciplinary meeting is not appropriate or justified.

If it is decided that there should be a disciplinary meeting, then the employee must be given advance notice of the meeting and the evidence gathered in the investigation should be disclosed to him to give him an opportunity to consider it.  These may be documents , statements of people involved, etc.

The purpose of the disciplinary meeting is to enable the decision maker and the employee to hear the evidence against the employee. The employee should have the opportunity to ask questions; to call his own witnesses who may contradict facts or show them in a different light; and to provide an explanation.

The decision maker should not give his decision immediately at the conclusion of the disciplinary meeting. He should take some time to consider, even if it is a case of asking the employee to wait for a few minutes while he thinks about what he has heard.

If an employer is able to show that he has conducted fair investigation and disciplinary processes, then he is well on the way to successfully defending the unfair dismissal claim. Going back to what Mr Justice Langstaff said, the question then becomes whether the employer had a genuine belief that the employee was guilty of the misconduct alleged. If the decision maker can demonstrate that he came to the disciplinary meeting with an open mind and that he reached his decision after considering the evidence at the disciplinary hearing , then he will be likely to be able to satisfy the Tribunal in this regard. It is only in the most exceptional cases that the Employment Tribunal will go behind the question of the decision maker’s belief in the employee’s guilt. The Tribunal will only do this in cases where, having regard to the evidence, the decision that the employee was guilty of the misconduct staggers belief. The word used is “perverse”.

Lastly, there is the question whether dismissal was within the range of reasonable responses. Obviously the answer will depend on the circumstances, not least the seriousness of the misconduct and the previous employment history of this employee. A note of caution: if the employer is relying on the fact that the employee has had previous warnings, when dismissing for what might otherwise be a relatively minor infraction,  it is important that the decision maker was aware of the history of warnings and had that history in mind.

In conclusion if an employer is able to show that:

  • he followed fair investigation and disciplinary processes;
  • leading to a decision taken on the evidence and with an open mind that the employee was guilty of the misconduct alleged;
  • and with an appropriate outcome;

then he is likely to be able to defeat an unfair dismissal claim, even if the employee can now cast some doubt on the question of his guilt of the alleged misconduct. As I said at the beginning, the word “unfair” in unfair dismissal relates to the procedures operated by the employer leading to the decision to dismiss.

These are the questions that those advising employees ask and go through. If, as an employer, you operate procedures which satisfy these tests, then it is likely that an employee’s adviser will warn that the chances of success are not high. This can be important if the ex-employee has legal expenses insurance or is trying to persuade a solicitorlawyer to represent him on a no-win no-fee basis (sharing a percentage of the winnings). In either case, the insurer or the solicitor will only take on the case if the odds of winning are good enough.

 

This blog post necessarily contains a brief summary of the legal principles and should not be treated as legal advice in any specific case. Please contact me if you wish to discuss any specific situation.

 

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Useful link:

The ACAS Code of practice – Disciplinary and grievance procedures: http://www.acas.org.uk/index.aspx?articleid=2174

The gazelle sculpture

November 25th, 2012

At our Growth Summit on 9 November, sculptor Wendy Hunt spoke about the process of creating a bronze, from inspiration through to the casting (which sounds like a very tense part of the process for the artist).

Wendy brought with her the model that she has created of the gazelle commissioned by Graeme Quar & Co. , and here it is, with Wendy and Graeme.

£6m acquisition of Beatles building is music to ears

MUSIC TO EARS: 94 Baker Street in central London has been sold for £6m in a deal handled by Graeme Quar & Co on behalf of property developer The Malins.

It was arguably the most famous fashion shop of its kind during the height of the Swinging Sixties – and run by the most famous pop band in the world.

The Apple Boutique at 94 Baker Street in London served as a short-lived business venture by The Beatles’ fledgling company, the Apple Corps, in 1967.

Amid near-riot scenes, the retail outlet closed in July 1968 as hundreds of shoppers clamored to grab free goods in the mayhem of a shambolic closing down sale.

The six-storey Georgian building in Marylebone, which dates back to 1795 and is a mix of retail and offices, also incurred the wrath of the local authority when a giant psychedelic mural was painted across the façade with the anti-establishment approval of The Beatles.

Now a new verse has been added to the history of the 779.4 sq m (8,390 sq ft) landmark building, which is adorned with a blue plaque in memory of music and song writer John Lennon, The Beatles’ legend who was assassinated by a gunman on December 8, 1980.

In a 48-hour deal, South Coast commercial law firm Graeme Quar & Co has acquired the vacant freehold from a pension fund on behalf of property development company The Malins Group, based in Weybridge, Surrey, for just over £6m.

Michael Dalton is a senior commercial property and business solicitor with Graeme Quar & Co, which has offices in Fareham and Petersfield in Hampshire, who represented The Malins.

He said: “We have a warm and long-standing business relationship with the purchaser, who instructed us to acquire this iconic Beatles building for £6,000,000.

The exchange of contracts date was just 48 hours from instruction as both parties were keen to move quickly – everyone acted to the letter.

It’s not often you get to work on the transaction of a London building so tied up with the best-selling band in history and Beatlemania.

Our client is considering converting part of 94 Baker Street into apartments, subject to all the necessary planning consents, and any new name may well be in honour of its most illustrious occupants.”

The deal rounds off a record-breaking year for Graeme Quar & Co, with turnover up by more than a third, and the recent hiring of Michael and legal executive Lorna Palmer, an expert in the pharmaceutical sector.

Graeme Quar, managing director, said: “The acquisition is music to our client’s ears and is the latest instruction for us in a record year.

We act for a number for entrepreneurs in a wide range of commercial property transactions, from acquisitions and disposals to lease work.”

Apple Boutique’s launch party on December 5, 1967, was the talk of the town, attended by Lennon and fellow band member George Harrison, along with their wives and pop greats such as Eric Clapton, Cilla Black and Jack Bruce.

They soberly sipped on apple juice to mark the occasion as the shop, then owned by the Portman Estate, was not licensed for alcohol.

Constant thieving by customers sounded the death-knell for the Apple Boutique, bringing to an end what fellow Beatles member Paul McCartney had described as “a beautiful place where beautiful people can buy beautiful things”.

GROWTH SUMMIT: Staff at commercial law firm Graeme Quar & Co, led by managing director and founder Graeme Quar, centre back.

GROWTH SUMMIT: Staff at commercial law firm Graeme Quar & Co, led by managing director and founder Graeme Quar, centre back.

Staff from thriving commercial law firm Graeme Quar & Co have taken part in a ‘growth summit’ to mark a record year in business.

The event, inspired by the founder’s recent overseas trip to meet an entrepreneurial giant of USA commerce, focused on delivering excellence for clients and business development amid rapid growth.

Graeme Quar, Managing Director, said: “It has been an incredible year for us, with annual turnover rising by 37% and a number of high-profile hirings on the back of increasing instructions from businesses across Hampshire and West Sussex.

“As any business with this kind of fast ‘gazelle’ growth knows, the important thing is never become complacent, but to strive for continual improvement in all areas, however difficult, inconvenient and time-consuming that may be.

“The joy of a gazelle environment is that it encourages innovation, which itself enhances productivity and a collective sense of purpose from everyone involved.”

The firm, which has 12 staff and is in its 18th year, has commissioned local wildlife sculptor Wendy Hunt  to cast a bronze gazelle as a visual acknowledgement of the record year.

“To be placed in our office, it will be a constant reminder that we must always deliver on all fronts for our clients,” said Graeme.

He recently flew to Arizona to meet in person Verne ‘Growth Guy’ Harnish, the author of best-selling business development book Mastering the Rockerfeller Habits, and a giant of USA commerce.

Verne was attending the Fortune Growth Summit in Phoenix, regarded as the Super Bowl of corporate gatherings.

“The event gave me the idea for our very own growth summit, albeit on a somewhat more modest scale and budget, so that we can continue to take huge strides to provide our clients with, to coin an American expression, an awesome service.

“A gazelle company is characterised not by its size but by increasing its revenues by at least 20% annually for four years or more, effectively doubling its income over that time, and we very much want to aim for this without comprising on legal excellence for clients.”

Guest speakers at the event, held at the Old House Hotel in Wickham, included Catherine Billam of Growth Accelerator, Sue Warden-Owen of MHL Coaching, both specialists in business training who live and work in Hampshire, and Tricia Jones of Frontline Communications.

With branches in Fareham and Petersfield, Graeme Quar & Co is a commercial legal practice to clients in Hampshire and West Sussex, including companies, small-to-medium enterprises, partnerships and sole traders.

In response to demand and market-place opportunities, the firm hired regional law consultants Michael Dalton and Lorna Palmer earlier in the summer.