Unfair Dismissal – reasonableness of the decision to dismiss – section 98(4) Employment Rights Act 1996
The Claimants had been dismissed for failing to comply with the Respondent’s fire safety policy. Rather than each signing-in and out when they came on, or left, site, Mr Gaskell would sign for both. The Respondent took the view that this amounted to gross misconduct, as a serious breach of health and safety procedures, and determined that both should be dismissed. The Claimants complained that they had been unfairly dismissed. The ET majority (the Lay Members) upheld the claims, albeit finding that any basic or compensatory award would be subject to a 33% reduction due to the Claimants’ conduct. The Employment Judge (in the minority) held that the dismissals were fair. The Respondent appealed.
Held: Allowing the appeal.
The ET majority’s finding that there had been no serious breach of health and safety procedures was based upon a mistaken view of the evidence before the Respondent when taking the decision to dismiss. The majority recorded that there had been nothing to suggest that Mr Gaskell’s signing for Mr Willis was inaccurate, but that failed to take account of the uncertainty arising once the Claimants had ceased to text each other to check the position (something that had emerged during the investigation). More generally, however, the ET majority had substituted its view of what was important for the purpose of the fire sheet policy and, thus, as to what amounted to a serious breach. It had also erred in its record of the facts applicable to a comparator case relied on by the Claimants, concluding that the Claimants’ conduct was less serious because the other employee had signed for a colleague when she was not in the building. That was not the allegation; the other case in question had involved a similar breach of the policy but only on one occasion, whereas Mr Gaskell had been signing in and out for Mr Willis practically daily for several months. The ET majority had also failed to demonstrate that it had asked the correct question when considering the issue of inconsistent treatment, failing to ask whether the Respondent’s view of the comparisons made by the Claimants fell within the band of reasonable responses. Generally, the ET majority had repeatedly focused not on the Respondent’s assessment of the seriousness of the Claimants’ conduct (or that of other employees) but on its own view, thus falling into the substitution trap; it had thereby applied the wrong approach to the question of fairness for section 98(4) purposes and its decision could not stand.
Citations:
[2018] UKEAT 0191 – 18 – 2211
Links:
Jurisdiction:
England and Wales
Employment
Updated: 31 May 2022; Ref: scu.635144
