Dismissalby Kate Russell
Dismissal for a reason relating to the conduct of an employee may be fair, but it is vitally important to follow the correct procedure. If you fail to do this, even dismissal for an apparently glaring case of misconduct could come unstuck.
The employer must show that misconduct was the reason for the dismissal, following the three-stage test in British Home Stores Ltd v Burchell . The three-stage test entails the employer being able to show that
- He believed the employee was guilty of misconduct
- He had reasonable grounds upon which to sustain that belief
- At the stage at which he formed the belief he had carried out as much investigation into the matter as was reasonable in the circumstances.
Where more than one suspect is involved, the Burchell requirements of genuine belief on reasonable grounds don’t apply. The employer is still under a duty to carry out the best and most rigorous investigation he can before reaching a final conclusion.
In a case of suspected theft where more than one employee was under suspicion, the employer investigated but the culprit was unidentifiable. The Court of Appeal found that where two employees are suspected of misconduct and the employer, despite investigation, cannot discover which is to blame, it may be fair to dismiss both employees on reasonable suspicion short of actual belief.
Burden of proof
The civil burden of proof is the balance of probabilities. This means that on balance it’s more likely than not that the employee is guilty of the misconduct. The employer doesn’t have to have conclusive direct proof of the employee’s misconduct – only a genuine, reasonable belief.
It is vitally important that the employer carries out a thorough investigation before taking any disciplinary action. All the relevant facts must be considered, including evidence – if this is so – that other employees are guilty of the same misconduct but have not been subject to disciplinary sanctions (see Discipline and Grievance).
You have to be able to prove the following.
- That you have a workplace standard.
- That the employee knew the standard.
- That the employee has breached the standard.
If one or more of these is missing any dismissal is likely to be ufair
M worked for the NHS. He was told by his supervisor to stop using his computer for private purposes. This had no effect and the supervisor eventually reported the matter to senior management. An investigation revealed that M had created over 250 files on his computer during working hours. He was dismissed and claimed unfair dismissal.
While it was true that M had carried out substantial private work over a period of two years, both before and after the instruction given to him, the tribunal upheld his claim of unfair dismissal. He had not received any indication, let alone a warning, that his conduct could lead to dismissal. There was also evidence that other employees used their computers for private purposes and that supervision was very lax in relation to this and other matters such as private phone calls and timekeeping.
Arguably the burden of proof has increased for employers where the matters under investigation are serious and could result in very severe penalties for the employee.
Ms Roldan was a nurse from the Philippines working for the NHS. She had four years of service when a healthcare assistant, Ms Denton, complained that Ms Roldan had mistreated a patient. Ms Roldan was told that a serious complaint had been made against her and was suspended.
During the investigation, Ms Denton was interviewed and completed an incident report; Ms Roldan and her supervisor were also interviewed. After hearing the evidence, the disciplinary panel dismissed Ms Roldan for gross misconduct. The panel stated that it accepted Ms Denton’s evidence and preferred it to Ms Roldan’s evidence, which it found to be inconsistent. The Trust rejected her appeal. As a result of the summary dismissal, Ms Roldan lost her work permit and therefore her right to work in the UK. She was the subject of a criminal investigation by the police. She complained that the dismissal was unfair.
The Court of Appeal agreed. One of the matters it considered in deciding whether the investigation was fair and adequate was the consequence for Ms Roldan of a finding of unfair dismissal. It said that, given that dismissal would lead to her deportation, a more careful investigation should have been carried out. This was particularly important because Ms Roldan had a previously unblemished record over four years of employment with the Trust.
Where there are allegations of misconduct, and there are two opposing accounts of an incident with little or no corroborative evidence either way, employers are not required to believe one employee and disbelieve the other. It is perfectly proper for the employer to say that, whilst not disbelieving the complainant, it has found the case against the accused to be ‘not proven’. The benefit of the doubt is therefore given to the accused.
It is open to an employer to determine what he considers to be misconduct and how serious he considers a breach to be. This will vary, depending on the organisation and the circumstances. For example, in many organisations it will be minor misconduct to smoke in a non-designated smoking area. In others, where the breach infringes safety or hygiene requirements, it will be a matter of gross misconduct.
Timekeeping and poor attendance are usually examples of minor misconduct.
The following are all examples of gross misconduct:
- Dishonesty, theft or fraud
- Damage to organisation property
- Incapacity for work due to being under the influence of alcohol or illegal drugs
- Physical assault, violent, abusive or intimidating conduct
- Gross insubordination
- Failure to comply with relevant statutory or regulatory requirements
- Sexual, racial or other harassment
- Unauthorised use or disclosure of confidential information
- Falsification of organisation records
- Working for a competitor without permission
- Reckless or serious misuse of a work vehicle
- Rudeness to customers
- Accepting a gift which could be construed as a bribe
- Breach of health and safety rules which endangers the health and safety of others in the opinion of the organisation
- Refusing to allow a search to be carried out in accordance with organisation rules
- Failure to disclose correct information on your application form
- Conviction for any serious criminal offence while an employee of the organisation
- Downloading or sending inappropriate material in contravention of the organisation’s email and internet policy
- Loading or downloading unauthorised software, or any other action likely to allow a virus on to the system; also, unauthorised use of floppy disks or CD-ROMs
- Behaviour, whether inside or outside work, which may bring the organisation into disrepute
- Publishing material in any format in which the organisation is identified or capable of being identified and comments are made about the organisation or any of its employees which, in the opinion of the partners, are detrimental.
You cannot assume that just because a matter is serious that it will be acceptable to a court to dismiss. For example, to most employers theft is theft, whether it’s a gold bar or a Mars Bar. In several retail cases where an employee has been caught stealing low-cost items and dismissed in consequence, the dismissal was successfully challenged because the cost was low, the company large and the employee had long service (and was therefore deemed to be ‘loyal’ by the tribunal). You really do have to spell it out if you want to be able to dismiss in certain circumstances.
Band of reasonable responses
Lord Denning, speaking at the Court of Appeal, developed the ‘Band of Reasonable Responses’ test in 1981, but it is still the test used by the courts today.
The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view; another quite reasonably take a different view.
Lord Denning’s judgment recognises that employers will have a range of responses to an employee’s conduct or capability and these responses are likely to vary from employer to employer. An employment tribunal should not substitute its own view, but must consider whether the employer’s response in the circumstances falls within the band of reasonable responses.
H had 15 years of blameless service, as a result of which the company gave him a good service award. Prior to the award there was some indication that H would have to go back to work after the presentation for the rest of his shift. The company then invited H and his wife to attend a presentation and gave him a present. The presentation included the provision of alcohol, at which point H decided it was not safe for him to go back to work. The company claimed that this was a refusal to carry out a reasonable instruction and dismissed him as a result.
H complained to tribunal. The tribunal concluded that the employer’s decision to treat H’s failure to return to work as gross misconduct was not unreasonable in that the decision to dismiss was not outside the range of reasonable responses.
The Employment Appeals Tribunal overturned this decision, holding that the question is the reasonableness of the decision to dismiss, which is an objective test.
Dismissal for improper remarks on social media websites
In the last few years, the problem of employees airing their views about their employers has become acute. While it is annoying and embarrassing for employees to sound off in public, the usual rules apply and it will only be acceptable to dismiss if it is reasonable to do so in all the circumstances. In the case of Trasler v B&Q Ltd , the employment tribunal held that Mr Trasler was unfairly dismissed for comments on Facebook about his workplace, although his own contribution caused his compensation to be reduced by 50 per cent.
Mr Trasler, a B&Q customer adviser, made a number of comments on his Facebook page after frustration over a management instruction. His Facebook page did not identify him as a B&Q employee, but he did have around 50 Facebook friends who worked at B&Q. Mr Trasler‘s comments included:
- ‘My place of work is beyond an expletive joke!!’
- ‘You know what it’s like, they reckon we can do more than one job at a time!! I have had to come home before I do something I regret!!’
- ‘I’ll be doing some busting but it won’t be queues!!’
These postings were reported to the employer by another B&Q worker who, while not feeling threatened, considered them to be contrary to the employer’s social media policy. In an investigatory meeting, Mr Trasler was asked about why he made the comments and what he meant by ‘busting’. He said that he had had a bad day and the comments were a way to relieve stress. He accepted that he should not have made the comments and that they could be perceived as threatening. He did not elaborate on what he meant by his ‘busting’ comment.
Mr Trasler was dismissed and claimed unfair dismissal. The employment tribunal accepted that B&Q had followed a fair procedure, meaning that the issue for the tribunal was whether or not Mr Trasler’s dismissal for these Facebook comments was within the range of reasonable responses.
The tribunal noted that the employer had concluded that ‘busting’ could have referred to damage to property or injury to personnel. The tribunal also held that the comments could come within the employer’s social media policy, which prohibits online comments that are derogatory towards the company or inappropriate.
Despite this, it went on to find that a breach of the employer’s social media policy did not always merit dismissal. B&Q should have imposed a lesser penalty if it did not believe that Mr Trasler’s actions amounted to gross misconduct. On the one hand, the disciplining officer had interpreted the comments about ‘busting’ as being a threat to the workplace and Mr Trasler had shown little remorse. On the other, Mr Trasler had a good previous record and no one had felt threatened individually. The tribunal could not accept that it was within the range of reasonable responses for the employer to conclude that the claimant’s actions were a threat to its business.
Accordingly, the court found that Mr Trasler had been unfairly dismissed, but reduced his compensation by 50 per cent.
Absenteeism and lateness
Both short-term absences and lateness can be dealt with through the conduct route although it’s unlikely that either would merit dismissal for a first offence.
Where there is an underlying medical reason for sickness absence, it will usually be handled as a capability matter (see Capability dismissal). Frequent and persistent short-term absence with no underlying medical cause for the absence often comes under the heading of conduct. It’s not so much questioning sickness absence as tackling non-attendance issues. An examination of records will identify those employees who are regularly absent and may show an absence pattern. In such cases, you should make sufficient enquiries to determine whether the absence is because of genuine illness or for other reasons. If there is an underlying medical reason for the short-term absence it will still be a capability matter.
Investigate unexpected absences promptly and ask your employee for an explanation at a return-to-work interview. Ask if there is an underlying medical condition causing the absence. If there is not, treat the matter as a conduct issue and deal with it under the disciplinary procedure.
In many cases, there will be no medical certificate to support frequent short-term, self-certified absences. You may be harbouring dark suspicions, but you’re not a doctor, so you still need to investigate the matter. Ask the employee to see a doctor to establish whether treatment is necessary and whether the underlying reason for the absence is work-related. If there’s no underlying medical reason for the absences, take action under the disciplinary procedure for non-attendance.
Checklist for managing short term absence
There are a number of key steps in managing short-term absence.
- Establish a clear procedure for employees to follow: clear notification standards, the use of a return-to-work interview with line management and completion of self-certification forms, even for one day of absence. This will ensure that everyone is aware that monitoring takes place and there is a complete record of absence.
- Establish a system of measuring, recording and monitoring absence. Regularly review this for emerging trends. Frequent absences could perhaps be evidence of malingering, but on the other hand they could be symptomatic of a deeper problem. Look for patterns of absence.
- Return-to-work interviews should always be undertaken by the individual’s immediate line manager on the first day of return to work, which will ensure that clear reasons for taking time off from work emerge. This will give managers the opportunity to get to the root cause of an absence which could be a symptom of a deeper problem. It also highlights the interest and concern felt by the organisation about absences.
- If the issues are personal and not work related, the employer should decide whether he is able to be flexible and hopefully enable the individual to address his issue.
- There may be an underlying medical condition, so the employer should consider requesting a medical report to support the level of absence.
- All employees should be made aware that any abuse of the sick pay provisions will result in disciplinary action.
- If there is no good medical reason for the absences, the employee should be counselled and told what improvement is expected and warned of the consequences if no improvement is seen. Escalate through the formal disciplinary process if the required improvement does not materialise.
- If there are medical reasons for the absence, consider whether the employee is disabled within the meaning of the Equality Act 2010 and what reasonable adjustments can be made. For example, does the absence relate to hospital appointments or necessary treatment; if so, the employer is required to make reasonable adjustments, which include allowing time off for treatment.
- If the situation reaches a stage where the employee is to be dismissed and there is no defined medical condition, it may be on the grounds of misconduct. Here the employer must be able to show that a fair procedure has been followed, taking into account the nature and length of the illness, past service record and any improvement in the attendance record.
- If the employee has a recognised medical condition that is not a disability, but the absence rate is unacceptably high, it may be possible to dismiss fairly for some other substantial reason after following the due process. Again, length of service and the availability of suitable alternative employment are relevant factors to consider before reaching a decision.
See also Attendance Management.