September 15, 2021
Cream HR is committed to providing you with up-to-date information that is relevant and supportive. Our Spotlight Series considers a new topic each time with the aim of helping you and your business to thrive now and long into the future.
Did you know the average cost to an employer for defending a case at tribunal is £36,000?
In this issue we are getting serious, looking at the topic of disciplinaries and the importance of process to avoid a simple HR matter growing legs.
The recent case of Mr C Kane v Debmat Surfacing Ltd (2021) led to some attention-grabbing headlines suggesting that an Employment Tribunal had ruled that it was acceptable to go for a pint when off sick. As good as those headlines may have been, they weren’t fully representative of the details of the case. The facts of the case were that the employer had received an allegation that the employee (Mr Kane) had been at the pub on a day when he had called in sick. However, according to Judge Pitt, “the investigation was not one which a reasonable employer would have undertaken”, the disciplining officer made “assumptions which were not adequately investigated or tested” and it wasn’t clear “the exact nature of misconduct of which the claimant was found guilty”.
In considering their decision, the judge listed 6 flaws in the investigation and 8 concerns with the disciplinary procedure all of which led the judge to find the claimant was indeed unfairly dismissed.
In Mr Cane’s case, the Tribunal was not satisfied that the employer had undertaken a reasonable and thorough investigation, or indeed disciplinary process and therefore could not find the employer’s decision to be a fair one.
When we at Cream HR work with our clients on similar complex employee cases we get a lot of questions about the decision the employer must ultimately reach regarding what possible action to take: what is the ‘right’ decision? Will a judge agree with my decision if this gets to tribunal? Am I allowed to dismiss for this matter?
These are certainly good questions to ask but they aren’t necessarily the most important ones. If a case makes it to Tribunal, the employer will first be required to demonstrate that the reason for dismissal is one of those set out in Section 98 (2) of Employment Rights Act 1996 (for example conduct or capability) or some other substantial reason.
British Home Stores Ltd v Burchell (1980)
Once a Tribunal is satisfied of the reason for dismissal, they must then use ‘the Burchell Test’ to approach assessing the fairness of an employer’s decision.
*The respondent is the person responding to the claim, generally the employer.
Furthermore, the Tribunal isn’t required to decide whether they would have made the same decision themselves, rather that the decision reached was within a range of ‘reasonable responses’, a band of responses that a reasonable employer might adopt, see Iceland Frozen Foods v Jones (1982).
In Stuart v London City Airport (2012) the Appeal Tribunal (EAT) made the rare decision to intervene in the Employment Tribunal’s original decision to deny a claim for unfair dismissal. The EAT held that the employer had failed to conduct a reasonable investigation as it had refused to acknowledge and review CCTV evidence that the claimant alleged would prove his innocence, referred to as ‘potentially exculpatory evidence’. As the CCTV footage referred to was readily available to the employer it was seen as a reasonable step to have taken. As such the EAT found the Tribunal’s original decision that a reasonable investigation had been conducted to be “unsustainable”.
More recently, in Brown v Veolia Es (UK) Ltd (2021), an Appeal Tribunal found the employee’s dismissal to be unfair based on a lack of procedural fairness. The original judge did find the investigative and subsequent disciplinary process to be “a catalogue of ineptitude and misjudgement” – the reasons for this included failing to keep suspension under review, providing the employee with only vague matters for investigation, mismanagement of the investigation process, cherry-picking evidence, making remarks that bordered on prejudgement, refusing to allow the employee more time to call witnesses and therefore not listening to evidence purportedly in her favour and asking leading questions of witnesses. Despite this, the judge originally said he was “just persuaded” of the reasonableness of the investigative process, however, the appeal tribunal did not agree and could see no basis to conclude that “the process fell within a reasonable band” and so the decision of a fair dismissal was overturned.
These cases serve to highlight the importance of getting your disciplinary procedure right, right from the start. This is why what we do with our clients is so important. From the very outset we work with you to identify the misconduct or performance issue and support you every step of the way. Via one to one coaching on investigation techniques, behind the scenes review of evidence and facts, and support with relevant paperwork we will guide you through your options and ensure your handling of the case is watertight.
We can’t stop people submitting a claim, this is their right, but we can help you to defend it. These cases show us that even small issues in a process can make the difference and that getting the small details right is vital in defending a claim.
To date, the team at Cream HR have never lost a case at Tribunal, and we are very proud of this.
We wanted to remind you of the importance of our work in helping you get things right and to let you know that whatever issue you have, we are always here to help - and remember, the earlier the better.
We deal with employee issues so you can deal with what you do best