Case update
Unfair dismissal and the importance of the reasons for dismissal
Attention should be directed to the actual reason provided by an employer for a dismissal, not to what an employer could have alternatively established to justify the dismissal.
Overview
The recent decision of the Employment Appeal Tribunal (EAT) in Chand v EE overturned the Employment Tribunal’s (ET) earlier decision that the employer’s dismissal of the Claimant on the grounds of gross misconduct for fraud was fair.
In doing so, the EAT reinforced that tribunals must look at the reason that the employer actually relied on in dismissing their employee when determining whether the dismissal was fair, rather than focusing on another ground which they could have relied on. This is the case even if relying on a different ground would have made the dismissal fair.
Facts
The Claimant, a Senior Customer Advisor at EE Limited (the employer/EE), was dismissed for gross misconduct involving fraudulent conduct following an investigation and subsequent disciplinary hearing held by her manager, Mr Palmer, in respect of four separate incidents involving the Claimant’s interactions with customers. The Claimant accepted that she had been negligent but denied any attempt to defraud or manipulate EE’s systems.
The Claimant appealed her dismissal at EE and the appeal was overseen by Mr Matthewman. During the appeal process Mr Palmer told Mr Matthewman that, had there been fewer incidents, the Claimant’s long record of good service might have affected the outcome of the dismissal.
Following her unsuccessful appeal, the Claimant brought a claim for unfair dismissal before the ET.
ET decision
In reviewing three of the four allegations, the ET held that Mr Palmer’s conclusion that the Claimant had acted fraudulently was unreasonable. It also held that finding that these incidents amounted to gross misconduct fell outside of the range of reasonable responses.
Mr Palmer had, in the ET’s view, undoubtedly adopted a flawed approach in respect of three of the four allegations, as his investigations were clouded by a belief that the Claimant had committed a fraud. If the dismissal had been solely in relation to these three matters, the ET would have had no hesitation in finding the dismissal to be unfair.
As regards the fourth incident, the ET again held that there were no reasonable grounds for Mr Palmer to view the conduct from the Claimant as fraudulent.
However, it went on to note that just because certain aspects of the process were flawed, it does not necessarily render the entire process unfair. The Claimant had committed a major breach of the customer connections policy in the fourth incident and, on that basis, the ET held that the breach was serious enough to justify the dismissal as fair.
The Claimant appealed to the EAT.
EAT decision
The EAT allowed the Claimant’s appeal, holding that the ET had been incorrect in its conclusion that the dismissal was fair.
The EAT held that, once the ET had concluded that there were no reasonable grounds for a belief in misconduct amounting to fraud, the only conclusion left open to the ET was to hold that the dismissal was unfair. They should not have imported the reason of an “egregious breach of customer connections policy” when this was not the reason relied on by the employer.
In this case, Mr Palmer (the Claimant’s manager, who dealt with the dismissal) had relied on a “composite” reason for dismissal, assessing the four separate incidents of alleged fraud together. Given that the ET held the belief in fraud to be unreasonable in the first three incidents, the relevant question for the ET to determine should have been whether the fourth incident was, in Mr Palmer’s mind, the principal reason for the dismissal. The ET had therefore incorrectly treated the fourth allegation as determinative when the employer had not advanced that case.
Furthermore, the ET had made an error in focussing on what the employer could have concluded on the evidence, rather than the reason actually relied on (fraudulent conduct).
