Shutting the Doors

Three simple employment tribunal cases serve to illustrate an important employment law concept – it’s not what you do but it’s how you do it.

Dismissing someone is never a happy affair but it is the job of an HR manager or other employment law adviser to make sure both that the soon to be dismissed employee is treated fairly and also that all possible arguments about unfairness are closed off before he or she is dismissed.

Three cases that we mention in this article illustrate this point.

The first case is Burdett v Aviva Employment Services Ltd 2014 which was decided in November 2014. In that case the employee admitted gross misconduct and was dismissed. The employment tribunal found that dismissal was an appropriate sanction but the employee won on appeal because the employer had failed to consider home working as an alternative to dismissal and had apparently considered that gross misconduct was the only sanction open to it.

The second case is called Ms F Brito-Babapulle v Ealing Hospital NHS Trust UKEAT/03584/12. In that case, again, the employee was found to have committed gross misconduct and the Tribunal held that ‘once gross misconduct is found, dismissal must always fall within the range of reasonable responses…’ and so held that the dismissal was fair. Again, the employee won on appeal, this time because the employer had failed to consider ‘mitigation’.

The third case is only an employment tribunal case at present and we have not yet obtained a copy of the judgement. The case is Wright v St Peter’s College Oxford. However, we mention it as it supports the general proposition we are making. The Oxford Times report on this case says the following:

“Mrs Wright was sacked as a result of a hearing after 12 gross misconduct allegations were made following an investigation into her behaviour. Her claim for unfair dismissal succeeded because her managers failed to consider her returning to work, or whether the breakdown in working relations meant things could not be improved in the future.”

We don’t have much faith in press articles, particularly as this one describes the tribunal as both an ‘Employment Tribunal’ and an ‘Industrial Tribunal’ in the same article (especially as the name ‘Industrial Tribunal’ stopped being used in about 1991). However, if that brief summary we set out above is correct then the judgement is another example of the point – namely:

A company can’t just decide that gross misconduct equals dismissal, instead it must close down all possible unfairness arguments before dismissing.

This is not to say, however, that the employers won’t win their cases eventually. This is because when a dismissed employee wins his or her appeal to the Employment Appeal Tribunal, it is usually sent back to the original tribunal for further consideration. This will be on the basis that something that should have been considered wasn’t considered by the employer and so the original tribunal will have to be reconvened to consider what would have happened had the right things been considered. The effect, therefore, is much more expense for the employer in defending an Employment Appeal Tribunal and in going back to the tribunal for another hearing. Clearly this is good news for employment solicitors only.

It is important to note that in these sorts of cases the scope for the tribunal to overturn a proper management decision is incredibly limited. The fact is, however, if the management has not considered something that it should have taken into account then the tribunal is usually bound to find that the dismissal is unfair and then to speculate on what would have happened if the right consideration had taken place. This might be, for example, that if consideration had been given to this or that there is a chance that the employee would not have been dismissed.

When we talk to clients we describe the dismissal process as being a corridor down which the company must lead the employee. There is a picture of such a corridor at the start of this article. At the end of the corridor is a fair dismissal but along the sides are other doors leading to unfairness. If the employer leaves any of the doors on the sides of the corridor open then the tribunal will go through that open door and never get to the fair dismissal. If, however, all the doors are closed then the only exit possible is the door at the end of the corridor marked ‘fair dismissal’.

Let’s look at these ‘doors’ in practice:

The ‘natural justice’ door:

That the employee understands the case against him That he has received the evidence against him That he has had a chance to consider the evidence against him That he understands his job is at risk That he has an opportunity to be heard

The statutory rights door:

That he understands he has a right be accompanied That he has a right, if disabled, to have ‘reasonable adjustments’ made in respect of the hearing

The door created by previous cases i.e the consistency door:

In other words, that the company has considered what has happened in similar cases, if any, in the past and has made an appropriate and reasoned decision as to why this case should be decided in the way it is being decided. Ask the employee if he is aware of the similar cases.

The mitigation door:

Has the company considered all mitigating factors?

• Ask the employee about the matter, why he did it, what affected him, investigate what caused him to act in the way he did. In other words, consider the wider issues surrounding the individual and his or her history;
• Ask him if there is anything that he wants the company to take into account, investigate these matters further if needed;
• Ensure that all alternatives to dismissal have been considered – including different jobs, demotion, different methods of working such as working from home, a lesser penalty such as a final warning.

The appeal door:

Check that he has been offered an appeal

The Burchall door:

For misconduct cases ‘the Burchall’ tests (which are essential) must be considered:

Test number one - was the investigation reasonably conducted?

Test number two - that the finding of the investigation caused the decision maker to have a reasonable belief that the act was committed which was complained of.

Test number three - was the response of the employer reasonable in all the circumstances?

In other words what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) had a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.

There must be established by the employer the fact of that belief; that the employer did believe it.

Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.

Thirdly, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

You can see that all of the above lead nicely to a standard agenda for a disciplinary hearing and minutes. Those minutes MUST show that all the doors have been closed:- for example,

It was explained to Fred that he was entitled to have a representative present but he declined to have one and confirmed that he was happy for the hearing to go ahead today

Fred confirmed he had received the information and understood the allegations and the evidence against him

Fred confirmed that he understood his job was at risk

It goes without saying that entries such as the above in the minutes of any gross misconduct disciplinary hearing are an absolute requirement for the HR manager. In fact, any such manager or other adviser should have a standard agenda and set of minutes in his or her armoury ready to be used at a moment’s notice.

Without those minutes we can imagine that when the employee speaks to his adviser after being dismissed the conversation would go along the following lines:

Well, as you didn’t understand that your job was at risk or understand the case against you nor have a representative present, your dismissal is clearly unfair so let’s bring a claim.

The three matters in the sentence above may be completely untrue but unless the company has demonstrated in its documents that they are untrue they enable those allegations to be made and leave the company on the back foot of having to provide evidence, at the risk of being disbelieved, that things that it has no evidence of actually did happen.

Dealing with disciplinary matters in this formulated way not only ensures that all the doors are closed but it leads to almost a universal disciplinary decision letter as follows:

Dear

I refer to the disciplinary meeting held on …. and now write to tell you of my decision. In reaching my decision I have taken into account the evidence as sent to you before the meeting, and your responses. You confirmed that you had received all the information in good time before the meeting, that you understood the allegations against you and the seriousness of your position, namely that your job was at risk, and that you were entitled to have a representative present. [I confirm that as a result of your explanation we decided that no further investigation was required or I confirm that as a result of what you said in the hearing or whenever that we investigated such and such an issue further and found…]

My decision is that you were guilty of ….. [or at the meeting you accepted that you [did steal, fight, whatever] [Burchall reasonable belief ]

[I have based this decision on the following …. ] [Burchall reasonable grounds]

In deciding what to do about this I have taken into account the mitigating factors that you outlined at the meeting [and also the following factors - length of service, previous record etc.]. I have also considered whether the company has acted in a consistent way as regards similar cases in the past and find that it has. In particular when asked about this you raised the case of [ ] who was not dismissed but only received a final written warning but I do not accept that this is similar because…..

Having made the decision that you are guilty of the matters alleged [or of some or one of them] I have had to decide what to do. Although summary dismissal is normally the penalty for gross misconduct it should not be an automatic response. As such, I have considered your reasons for the conduct complained of and have considered what the appropriate penalty should be.

Either you denied the allegation(s) entirely leading us to not being able to consider your reasons or you explained that you were [on drugs, extremely angry, provoked, tired having worked X days without a break etc. whatever]

My decision is that you should be summarily dismissed from the company’s service with immediate effect/ issued with a final written warning/ whatever. Explain why this penalty and not something else

Consider other issues Separating him or her from the others Home working – e.g. I do not consider that home working is appropriate in this case or that in some other way we could prevent the harm caused by your actions from happening again. Or your job simply can’t be done at home or in any other way…etc.

In accordance with the company’s disciplinary code you have the right to appeal against this decision. To do so please write to me within [5] working days outlining the grounds on which you appeal.

If you are an employment tribunal advocate you should be aware that in some cases there is nothing wrong in admitting unfair dismissal at the outset. In fact, in some cases this is very much the best tactic. We say this with absolute conviction but we are aware that some solicitors, barristers or other advocates won’t agree with us. Over the last 25 years or so the writer of this article, Simon Steen, has appeared in hundreds of tribunals and on many occasions when acting for a company he has started the tribunal by saying ‘this is an unfair dismissal’ or similar. Occasionally when doing so he has noted incredulous and even scoffing noises coming from the other side (who should know better). We can say this: if your case is in any way weak on unfair dismissal consider not arguing the point even if you could win. To win means that you have left the door open for a successful appeal which will only increase your client’s costs. In such a case it is far better to concentrate on the money – i.e. to get a finding that no compensation is payable as such a fact based finding is almost completely and utterly un-appealable against. Secondly, we say, if there is a gap in your client’s procedure such as a failure to have considered something, head that gap off with evidence and argument. Do not ignore it and hope it will not be noticed, as even if it is not noticed by the Tribunal it will be noticed by the Employment Appeal Tribunal.

Two examples:

In about 1995, before the writer joined a particular firm, his eventual client had used a barrister to win an unfair dismissal claim brought by 3 dismissed pub employees. The disciplinary hearings had been brief in the extreme – summarised as ‘come in, we have evidence that you are guilty of gross misconduct for the following things…… what do you say? – nothing –well you are dismissed, please leave’. The barrister in question must have relied on the old cases that say it can be a fair dismissal to dismiss someone without procedure in circumstances where it could reasonably be considered that no amount of procedure would have made a difference. In doing so he obtained findings of fair dismissal. The employees, however, went to the EAT and obtained a rehearing because no consideration was given to what would have happened if the employees had been properly prepared for the hearing etc.

We turned up for the new hearing and the judge started the day by asking ‘what do you say about the dismissals Mr Steen’. This is judicial code for a) I want to know if you know what you are doing and b) I don’t want to waste my time hearing arguments about this being a fair dismissal. We met that challenge head on with words to the effect; ‘of course these are unfair dismissals’, thereby giving away the victory that the previous barrister had fought so hard, at his client’s expense, to win. The point being, of course, was that these were unfair dismissals but there was little if any chance of the tribunal giving them any money because they were all guilty of theft. In that sense, the message is that it is better to concentrate on the things you can win than waste the tribunal’s time arguing against the indefensible. Our admission of unfair dismissal, therefore, cleared the decks for a decision on compensation in our client’s favour (and at the same time established to the tribunal that we knew what we were doing and weren’t going to waste its time).

Another example resulted in us acting for a chain of recruitment consultants. One of its managers had made an underperforming branch manager redundant with a procedure lasting 10 minutes or so. Our first words in the tribunal on the first day were to admit this was an unfair dismissal. This was one of those cases where the barrister and solicitor on the other side gave every indication of being amazed at this admission and that they thought ‘that’s it then, we have won lots of money’. No!– unfair dismissal does not automatically result in money being awarded! We spent the day explaining just why this underperforming branch manager should been dismissed and our evidence was entirely accepted by the judge. The result was that the employee was awarded just that amount of money that she would have received in wages for the period a fair procedure would have taken. In that case it was a week. Sadly she burst into tears at this point, presumably due to her sudden realisation that she had paid for both a solicitor and a barrister to represent her and that she had only won a week’s pay.

The message is that, before you dismiss, make sure you have closed off all possible lines of argument and if you get to Tribunal, admit those things that are weak and win the case on the things that are strong. In addition, prepare a standard set of agenda items for disciplinary hearings that will ensure you have ‘closed the doors’. You don’t have to close off doors that aren’t necessary though! We mentioned the ‘could he work from home’ point above because it was relevant to one of the three cases that this article mentions. It was relevant in that case (which was about an employee’s inability to work properly with his colleagues in the office) but such a ‘door’ will not be relevant to other cases, such as gross misconduct for theft.

We can help if required. For example, we can review your letters and disciplinary procedure and assist with drafting the agenda for the managers concerned.