To dismiss or not to dismiss? That is the question

It is well known to employers as well as to employees, that an employee who has more than 2 years service with an employer has a right not to be unfairly dismissed. There are 6 potentially fair reasons for dismissal (the potentially fair reasons) namely; capability or qualifications; conduct of employee; retirement of the employee; Redundancy; statutory illegality; or some other substantial reason. If an employee is dismissed for any other reason, then the dismissal will be automatically unfair. Indeed, if a tribunal finds that the dismissal was because of, for example, discrimination or related to pregnancy, then the employee does not even have to have been employed for 2 years. His or her right not to be unfairly dismissed arises from day one of employment. For a dismissal to be fair the employer will have to show that the dismissal was for one of the potentially fair reasons. To do this it is essential that basic procedures are followed. This means that an employer will need to show (except in the case of redundancy where additional factors apply) that he or she investigated fully, gave the employee an opportunity of a fair hearing and properly considered all the facts. Even after that, an employers decisions and actions, particularly if they result in dismissal will be judged in the light of the question; is the decision to dismiss within the range of reasonable responses open to a reasonable employer? This “reasonable responses” test also gives rise to difficulties in practice. The problem arises because an employment tribunal cannot simply substitute its views for those of an employer. Whilst it may feel that in the circumstances of a case it would not have done what the employer did, that is not the test. The test is was the decision of the employer within a range of reasonable responses of a reasonable employer. Thus just because a tribunal or another employer would have come to a different decision, if the employers decision was within a range of reasonable responses, then it cannot interfere. An interesting illustration of this principle is the case of StuartVLondonCityAirport2013. In this case Stuart was employed London City Airport (LCA). He had an excellent record. In December 2009 he was dismissed for allegedly attempting to steal goods from LCA’s duty-free shop. He was dismissed after  a disciplinary investigation and hearing. However certain material witnesses were not interviewed or asked to give evidence at the disciplinary hearing. Stuart therefore did not have the opportunity of disputing all of the allegations. There was CCTV footage available which would have helped in clearing up whether, as alleged by the store assistant he had concealed the items. This was never used. Stuart then brought an unfair dismissal claim. Perhaps surprisingly to an observer, the Tribunal held that the investigation carried out was reasonable, and that it was fair for the employer to dismiss Stuart. Unsurprisingly, Stuart appealed to the Employment Appeal Tribunal (EAT). It overturned the Tribunal’s decision. Their decision was that the employer had reached a decision outside the range of reasonable responses. The EAT felt that as this was a very serious allegation the employer should have considered the other evidence readily available such as the CCTV evidence. The employer then appealed to the Court of Appeal (CA) which upheld the employer’s appeal and agreed with the findings of the original Tribunal. The CA would not interfere with the riginal Tribunals decision because it held that the Tribunal had been entitled to find that the employer had carried out a reasonable investigation into the alleged theft. It said that the Tribunal had asked the right questions and come to a considered conclusion about the issues presented before it. Even if the Tribunal had felt that it would not have dismissed dismissal was within the range of reasonable responses. On the face of it this looks like a case which is favourable to Employers. However, if a case comes before an Employment Tribunal and the tribunal finds that dismissal was not within a range of reasonable responses, then provided the Tribunal asked the right questions and had come to a considered conclusion then no appeal will succeed. The decision to dismiss must not be taken lightly as there is always scope for argument later. To minimise the risks all employers should have proper procedures in place and take proper advice when disciplining or dismissing employees. Getting it wrong can be costly for an employer and catastrophic for an employee. Tony Morcowitz is a employment law specialist for Setfords Solicitors.