Reasonable Dismissals
The latest annual report of the Employment Tribunal Service shows that 40,927 claims for unfair dismissal were made in the year 2003-2004. The large majority of claims were settled or withdrawn before the Employment Tribunal but, of those that went to a full hearing, around 50% were successful.
The key issue in claims for unfair dismissal is whether the employer has followed a fair disciplinary procedure – this should generally include a reasonable investigation, a properly conducted disciplinary hearing and an appeal. The interesting feature of unfair dismissal claims is that, provided an employer has followed a reasonable procedure, the final decision to dismiss an employee will normally be upheld and found to be fair.
The law relating to unfair dismissal has evolved so that employers are given a great deal of discretion as to when it is appropriate to dismiss an employee. There are two central principles at the heart of substantive unfair dismissal law. The first principle is that the Employment Tribunal must not substitute their view about fairness in place of the view taken by the employer. The Tribunal are not allowed to ask themselves whether they as three individuals would themselves have decided to dismiss the employee.
The second (and related) principle is that the Employment Tribunal must accept that there is a ‘band of reasonable responses' within which one employer can reasonably take a different view to another employer. For example, one employer might decide that abusive remarks that are made to supervisors will generally merit dismissal whereas another employer might treat this kind of misconduct as meriting a written warning or final written warning. The Employment Tribunal have to accept that both these employers are acting reasonably and, even if they themselves might have taken a more lenient view, have to accept that the employer who dismisses the employee for abusive behaviour is acting within the hand of reasonable responses.
I recall one particular case where an employee had helped himself to a small item of confectionary (valued at around 25p) and had been dismissed for this one incident alone even after 15 years of exemplary service. The Employment Tribunal had to accept that the employer was acting within the band of reasonable responses when they said that any kind of dishonesty could be treated as gross misconduct as a matter of principle.
It is important to appreciate that the discretion given to employers about when they dismiss employees must be exercised consistently between employees and is always subject to following a fair disciplinary procedure. An employee who is dismissed without a reasonable investigation, proper disciplinary hearing and proper appeal, will almost always succeed in their claim at the Employment Tribunal no matter how severe the misconduct.
For further information and advice about unfair dismissal and disciplinary procedures please contact Paul Archer or Helen Climance at Lemon & Co Solicitors 01793 527 141.
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<p><strong><a href="http://www.lemon-co.co.uk/article_reasonable-dismissals.php">Reasonable Dismissals </a></strong><br />
The latest annual report of the Employment Tribunal Service shows that 40,927 claims for unfair dismissal were made in the year 2003-2004. The large majority of claims were settled or withdrawn before the Employment Tribunal but, of those that went to a full hearing, around 50% were successful. ...</p>