ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC
Strand, London, WC2A 2LL
B e f o r e :
| PATRICIA HOWE
|- and -
|LONDON BOROUGH OF HAMMERSMITH AND FULHAM
The Respondent was not represented
Hearing date: 17 May 2011
Crown Copyright ©
Lord Justice Rimer :
'… found that Ms Howe had been engaged in dual employment despite an instruction not to do so; he found too that she reported sick to [Hammersmith] while able to work for Brent. He considered that the allegations amounted to gross misconduct and dismissal was the appropriate sanction.'
'We consider that the investigation was thorough and fell within the range of reasonable responses. The investigators discovered the primary evidence and showed it to the decision makers. The primary evidence showed that Ms Howe not only held dual employment but that there were occasions when she had worked for Brent during the day and had been off sick for [Hammersmith]. Although we fully accept that there may be occasions when an illness can come on during the day so that one is well enough to work during the day but ill at night or vise [sic] versa, we do not see how this could possibly happen for two consecutive days. Therefore, we considered that the belief held by [Hammersmith] was reasonably based upon the investigation.'
'Lastly we have to consider whether the dismissal is a fair sanction. We remind ourselves that it is never our job to substitute our view for that of the employer and that what we would have done ourselves is irrelevant. We consider that a reasonable employer on these facts could have dismissed, that is [Hammersmith] was entitled (in the sense that it was within the reasonable range of responses) to find that there had been a clear instruction given and that it had been disobeyed. It was entitled to find that she was disobeying the instruction. In those circumstances a reasonable employer is entitled to consider that giving a warning is unlikely to have any effect because the claimant has made it plain by her conduct that she is unlikely to obey any further instructions from the employer. We consider that in these circumstances on these facts an employer is unlikely to be able to trust the employee in the future. For those reasons dismissal is a fair sanction.'
'Although it would have been preferable had a letter existed showing the instruction we consider that [Hammersmith] had sufficient evidence to show that the instruction had clearly been given.'