EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES – Impact on compensation
UNFAIR DISMISSAL – Compensation
Unfair dismissal. Misconduct dismissal: excessive personal use of internet and email and failure to carry out work allocated, employee having, three months earlier, been disciplined for like conduct and received a written warning. Employee admitted ‘charges’ of misconduct and put forward in mitigation that he had had previous problems with depression and that his health problems had increased at the time his prohibited use of the internet had resumed.
Employers conceded that dismissal automatically unfair due to their failure to communicate via their Step 1 letter that they were contemplating dismissing the Claimant but sought both a Polkey reduction and a reduction on account of the Claimant’s contribution to his own dismissal. Employment Tribunal found that the dismissal would have been unfair in any event because the third strand of the Burchell test had not been complied with; the employers had failed to properly investigate the import of an ‘internet usage’ report and had failed to investigate the employee’s health further – they had failed to investigate whether his conduct could have been linked to his medical condition. As to contribution, Tribunal found that Claimant had contributed to his own dismissal by failing to carry out the work he was employed to do, by using the internet excessively, by failing to take steps himself to obtain medical assistance and by failing to alert his managers to the fact that he was in difficulty; they fixed contribution at 15%. On appeal, Employment Tribunal held to have misdirected itself. This being a case of admitted misconduct, there was little scope for further investigation and in all the circumstances, dismissal was plainly within the range of reasonable responses open to the Respondents. It was not open to them to find that the third strand of Burchell had not been met. Dismissal would, clearly, without the procedural failure, have been on the agenda. There should, plainly, have been a substantial Polkey reduction. Employers do not, in general, have a duty to investigate matters advanced in mitigation. As to contribution, 15% was, in all the circumstances, so low as to be perverse. Case remitted to Employment Tribunal for a rehearing.
Judges:
Lady Smith
Citations:
[2011] UKEAT 0043 – 10 – 1204
Links:
Jurisdiction:
England and Wales
Employment
Updated: 13 September 2022; Ref: scu.440152