UNFAIR DISMISSAL
The respondent provides support to homeless people including social housing provision. The claimant was a Housing Management and Lettings Co-Ordinator. He was summarily dismissed following a disciplinary process. His internal appeal was unsuccessful. The matter arose from an incident at one of the respondent’s properties involving the claimant and a resident who was facing eviction for threatening behaviour. The conduct for which the claimant was dismissed was, firstly, assaulting the resident during the course of the incident, and, secondly, omitting this from his incident report. The employment tribunal found that the claimant was both unfairly and wrongfully dismissed. Appeals from both decisions were upheld.
In relation to unfair dismissal the tribunal had erred by failing to take the correct approach to the evaluation of whether the sanction of dismissal was within the band of reasonable responses open to the respondent for the conduct found, and had fallen into the substitution error. London Ambulance Service NHS Trust v Small [2009] IRLR 563 and Graham v Secretary of State for Work and Pensions [2012] EWCA Civ 903 considered and applied.
In relation to wrongful dismissal the tribunal concluded that the claimant’s conduct was a breach of contract but not a fundamental breach. In relation to the implied duty of trust and confidence that was not a legally permissible conclusion. If the tribunal had some other contractual term in mind, it was not clear what it was, and the decision was legally unsafe.
Citations:
[2022] EAT 117
Links:
Jurisdiction:
England and Wales
Employment
Updated: 01 September 2022; Ref: scu.680324