Assessing the fairness of a dismissal

Any claim for unfair dismissal must go through a 2-stage test:

 

  • Was the dismissal for a potentially fair reason?
  • Did the employer act reasonably in dismissing the employee for that reason?

This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which the dismissal was handled was unreasonable, so that the dismissal becomes unfair.


Reasonableness of the dismissal

The second part of the test requires the tribunal to consider 2 factors – firstly, whether the employer used a fair procedure and secondly, was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out?

 

The procedure

For any disciplinary action started on or after 6 April 2009, an employer will be expected to follow the ACAS Code of Practice on Disciplinary Action. The minimum steps under this code are:

 

  • Inform the employee of the reasons that disciplinary (or capability) action is being taken
  • Hold a meeting to discuss the matter before making any decision
  • Inform the employee in writing of the decision
  • Allow the employee a right of appeal against the decision.

 

If this minimum procedure is not followed then that fact will be taken into account by an employment tribunal, and it may well mean that the dismissal will be unfair, but not necessarily.

 

This Acas Code applies whatever the reason the employer is considering disciplining the employee (eg misconduct, sickness absence, poor performance) EXCEPT THAT it does not apply to redundancy dismissals or retirement dismissals.

 

However an employer who makes an employee redundant without following any procedure may well find the dismissal being held to be unfair by a tribunal.

 

The reasonableness of the decision to dismiss

This appraisal incorporates what is sometimes called the band of reasonable responses test. The question posed by this test is: was the employer’s response to the situation one which a reasonable employer acting reasonably might have made? This recognises the variety of responses possible in any set of circumstances, with dismissal representing an extreme end of the spectrum.

 

Iceland Frozen Foods v Jones (1982) UKEAT 62

 

For example the Acas Code of Practice suggests that employers have disciplinary procedures which allow for a range of possible sanctions:-

 

  • A verbal warning
  • A written warning
  • A final written warning
  • Dismissal

 

This does not mean that an employer who jumps straight to dismissal for a first “offence” will necessarily be found to have dismissed the employee. A serious, one off offence (eg fighting, harassment of a colleague, theft from the employer) might all justify dismissal without any warnings being given.

 

An employment tribunal would consider some of the following in appraising the reasonableness of the employer’s decision to dismiss an employee:-

 

  • Was the employee given a fair hearing by the employer?
  • What evidence was used at the hearing and was it all used?
  • Was the employee given ample opportunity to defend themselves or make a case for not being dismissed?
  • Did the employee have a representative at the hearing or a trade union official?
  • Was care taken to ensure that any disciplinary hearing which preceded the employee’s dismissal was free of bias, or the possibility of bias?
  • If there was more than one employee involved were they all treated in the same way?
  • Had the employee done this before?
  • How had the employer treated similar situations before?
  • Did the employer consider warnings, were these used in the past?
  • Did the employer consider the overall performance of the employee, for example did the employee previously have a long record of good work and behaviour?
  • Could the employer have disciplined the employee instead of dismissing them?
  • Did the employee have an effective right of appeal against the decision?
  • Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why?

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