It is not unusual for a lawyer to be asked ‘You must have had some really interesting cases in your time?’. Well, it very much depends on how interested you are in the bus driver who was sacked for relieving himself at the side of the road in full view of his passengers. Or the HGV driver who, apparently, was able to remain in full control of his 11 ton lorry whilst watching the film playing on his laptop, conveniently situated on the dashboard. Or the motor mechanic who forgot to tighten the wheel nuts on a customer’s Porsche 911. In all of these cases, the facts were not in any material dispute. Surprising then, that the individual employees alleged that their respective dismissals were unfair. So it is worth remembering that whatever the facts or the issues, a fair procedure is key to minimising the exposure to both a claim and a finding of unfair dismissal by the Employment Tribunal. The law assumes that any dismissal is unfair unless the employer can establish a fair reason for that dismissal. Don’t worry about that too much – there are only five fair reasons in law and you should be able to apply one of them. The reason for dismissal is usually self-evident. For example, catching the accounts assistant with their hands in the petty cash is going to be gross misconduct. Having established the reason for dismissal, the employer must then establish that it acted reasonably in dismissing for that reason. If an employer is going to come unstuck, this is where it usually happens. The legal test of reasonableness in a conduct case is broadly this:
- the employer must have a genuine belief in the employee’s guilt;
- that belief is held on reasonable grounds; and
- the employer has carried out a reasonable investigation.
Whatever the facts and however obvious the situation may be, the decision maker must approach matters with an open mind. Allow the employee to put their case. Be prepared to consider even the most outlandish of explanations for an employee’s behaviour. Whilst you are not obliged to accept the explanation, you are required to consider it. If you need to investigate further, then do so. Having put the allegations to the employee and considered what they have to say, the employer is then required to establish that the decision to dismiss falls within the range of responses open to a reasonable employer. Even in the very worst of cases, the employer must consider whether the punishment (that of dismissal) fits the crime. Long and previously unblemished service may be a reason not to dismiss. Cases where other employees have not been dismissed in similar circumstances may render dismissal in the present case unfair. Do not be hamstrung by these requirements though. The employer’s duty is to consider these additional factors. Long service, on it’s own, does not override the seriousness of the offence. And when all that is done, make sure you offer the right of appeal. A failure to do so is likely to make any dismissal unfair. So what happened in the cases above? Believe it or not, one of the employees received compensation due to a failure to follow procedure (in fact, any procedure at all). Taking advice at the outset and dealing with matters in light of that advice could save your business money and minimise operational disruption. Nick Wilson is responsible for the employment law service at Crooks Commercial Solicitors Limited, a specialist commercial law firm with experience in many sectors including recruitment. Contact Nick on 01924 669159, email at firstname.lastname@example.org or www.ccs-law.co.uk.