EAT UNFAIR DISMISSAL – Reasonableness of dismissal
On three occasions over three days, the Claimant was thought to be having inappropriate and excessive physical contact with the young children (aged 7-8) at an after school hours club which he was employed to run. The employer genuinely thought that he had broken a policy that provided for limited physical contact only and dismissed summarily. The Claimant accepted that the children had sat on his lap (in two cases) and he had held the child in the third but said that his actions were within the policy. The Employment Judge was dismissive of this point in a way that showed he did not properly consider it. Nor did he consider the policy sufficiently – had he done so, he would have seen it allowed for some flexibility as to the occasions on which contact would be acceptable, and that the Claimant was contending that on at least two of the occasions that what he did was within it and the third contact was so fleetingly brief as to be of no significance. He argued that the employer had not taken into account the circumstances and the fact (as he alleged) that other staff at the club also permitted children to sit on their laps. There was some support for this in investigations which the employer undertook after a disciplinary hearing that resulted in dismissal so that the Employment Tribunal wrongly considered that there had been no investigation, but (a) given the consequences of the decision for the future career of the Claimant the investigation should have been thorough and was not, (b) the employer erroneously appeared to declare that if there was a breach there was no room for mitigation yet the Employment Tribunal did not examine this, and (c) if it was not uncommon for such to happen there would be good grounds for thinking a sanction short of dismissal might have been the most that a reasonable employer could have imposed, the appeal was allowed and the matter remitted to a fresh Tribunal for determination of the claim.
Langstaff P J
[2016] UKEAT 0101 – 15 – 2001
Bailii
England and Wales
Employment
Updated: 12 January 2022; Ref: scu.561006