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At the Tribunal | |
On 20 November 2013 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D BLEIMAN
MR D G SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS KIRTI JERAM (of Counsel) Instructed by: Sintons LLP Solicitors The Cube Barrack Road Newcastle upon Tyne NE4 6DB |
For the Respondent | MR ANTOINE TINNION (of Counsel) Instructed by: Richmond Anderson Goudie Solicitors 1-2 Flake Cottages Cone Terrace Chester le Street DH3 3QH |
SUMMARY
UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
Disciplinary process delegated to external HR consultants by this small employer. The reason for dismissal was the set of facts/beliefs in the mind of the consultants, even although the recommendation for dismissal required approval from the employer.
The reason or principal reason for dismissal relates to the categories of potentially fair reasons in s98 Employment Rights Act 1996. Where the reason is solely 'conduct' all constituent parts of that reason are relevant to the reasonableness question under s98(4) not the principal act of misconduct.
Additionally, the Employment Tribunal substituted its view for that of employer as to sanction. Employer appeal against finding of unfair dismissal allowed. Finding reversed.
HIS HONOUR JUDGE PETER CLARK
Preliminary issues
The facts
The ET decision
"We have considered whether a reasonable procedure had been followed by the respondent. We reject the submission of Mr Tinnion that the procedure was flawed because GM was effectively the dismissing officer and the appeal officer. In this case GM brought in consultants to deal with this matter as he was involved in the matters under investigation as he was a witness to the events and could not impartially deal with the resulting proceedings. The fact that a consultant brought in to deal with such matters advises the owner of the business of the decision and seeks permission to implement it does no more than reflect the reality of the situation. In an organisation of the size and administrative resources of the respondent company and given the senior position of the second claimant in the company, the actions taken to deal with the disciplinary proceedings against the second claimant were reasonable."
The appeal
"...is the set of facts known to the employer or, it may be, of beliefs held by him which cause him to dismiss the employer."
See Abernethy v Mott, Hay and Anderson [1974] ICR 323 at 330 per Cairns LJ. It is only when that set of facts or beliefs has been established by the employer that the reasonableness question under section 98(4) ERA can be properly answered.
Disposal