Unfair dismissal – reasonableness of dismissal by reason of conduct that did not amount to gross misconduct – remitted hearing
The ET had originally found the Respondent’s dismissal of the Claimant was unfair. In so doing, it had considered it unfair that, at the appeal stage, the Respondent had purported to aggregate individual acts of misconduct to justify a finding of gross misconduct. On the Respondent’s successful appeal, the matter was remitted to the same ET for reconsideration, this time asking only the questions raised by section 98(4) Employment Rights Act 1996.
On the remitted hearing, the ET accepted that the conduct found proven at the disciplinary appeal stage was as stated by the Respondent. Asking whether, in those circumstances, the decision to dismiss fell within the band of reasonable responses, the ET concluded it did, albeit at the extreme end of the range. The dismissal was not unfair.
On the Claimant’s appeal:
Dismissing the appeal. The ET’s reasoning on the remitted hearing had to be read along with those parts of its earlier reasoning that had not been the subject of the previous appeal. Adopting that approach, it was apparent that there was an evidential basis upon which it could conclude that alternatives to dismissal (including warning the Claimant about her conduct) had been considered by the Respondent in the disciplinary process. It was also apparent that the ET itself – by considering the potential range of possible responses – had taken into account the possibility of lesser sanctions but had still concluded that dismissal fell within the range. No error of law was disclosed.
Eady QC HHJ
[2015] UKEAT 0179 – 15 – 2310
Bailii
Employment Rights Act 1996 98B
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565078