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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