One of the most common claims brought in the employment tribunal is for unfair dismissal, often where an employee is dismissed for ‘gross misconduct’.
But it is also a claim that is not well understood. If an employee is dismissed for theft, for example, and they are adamant that they are innocent, they will often issue a claim for unfair dismissal in which they will argue that they did not in fact steal anything.
However, it is not the function of the employment tribunal to consider the facts of every claim for unfair dismissal based on misconduct and decide whether it thinks that the employee did or did not do the thing alleged.
What the tribunal must consider is whether it thinks the employer believed that the employee was guilty of the misconduct alleged (as opposed to using the alleged misconduct as a pretext to dismiss for some other reason) and whether the employer had reasonable grounds for believing that the employee was guilty of misconduct based on a reasonable investigation of the relevant issues.
If the employer can meet this test, the tribunal then needs to consider whether the dismissal was within the ‘range of reasonable responses.’ In effect, it must consider whether a reasonable employer, in that situation, would consider dismissal to be a reasonable sanction.
Because the tribunal does not have to determine whether the employee did or did not do the misconduct alleged, even if the claim succeeds, this does not mean that the employee is ‘vindicated’ or found innocent by the tribunal. However, the culpability of an employee is a relevant consideration in a ‘wrongful dismissal’ claim, which essentially considers whether the employee’s conduct was so significant that it breached their contract of employment and entitled the employer to dismiss them without notice.
A fundamental issue in any misconduct situation is the extent to which it is clear to the employee that the conduct in question could be considered so serious that it is reasonable to dismiss them if they behave in a proscribed way. Employers will often have policies in place and training for employees that clearly set out their expectations for what is acceptable.
This issue was recently considered by the employment appeal tribunal in the case of Hewston v. Ofsted.
Mr Hewston was employed as an inspector; during a school visit, when a child had come inside while it was raining, Mr Hewston had touched the child’s head and back.
The fact that he had touched a child without permission was said to be inappropriate, contrary to Ofsted’s core values, and had damaged their reputation.
Mr Hewston argued that at no stage had he been made aware, or received any training to the effect that, were he to touch a child in such circumstances, this would be a dismissible offence, and therefore he had not known that this would be the case.
Notwithstanding that, Mr Hewston was dismissed and then lost his claim for unfair dismissal in the employment tribunal, but that decision was overturned on appeal.
The employment appeal tribunal agreed that there was a lack of clarity on the fact that a single incident of physical contact of this sort (which was not found to give rise to any safeguarding issue) could result in dismissal. It was therefore unfair to dismiss someone in those circumstances.
Another important element of Mr Hewston’s appeal was that he had not been provided with relevant documents that Ofsted had considered as part of their decision-making process about the incident itself, such that he could provide any comment or opinion on them.
Natural justice requires that an individual knows the case against them and can respond to any evidence relied on; where that does not happen, the fairness of the process is undermined and can lead to a decision that a dismissal is unfair.
This case is a useful reminder of the importance of clear and detailed policies that set out the employer’s expectations of their employees as well as the type of sanction that certain behaviours might attract. Employers should be able to demonstrate that an employee knew, or ought to have known, that the issue raised by the employer would be considered misconduct.
Safia Tharoo,
Barrister, 40 Bedford Row, London
