Fair Dismissal: A painstaking procedure
by
Giles Baxter, Viberts - Jersey Lawyers
Employers in Jersey now know that they can no longer dismiss an employee without good reason, and that if a dismissal is unfair, as defined by the law, the employee has remedies which are available through the Jersey Employment Tribunal.
In most cases that have been determined by the Tribunal, the main question has been whether or not the behaviour of the employee was such that his dismissal was justified, i.e. fair. Recent cases that have come before the Tribunal indicate that there is not a general awareness that there are two main aspects to fairness. The purpose of this article is to explain those two aspects.
Grounds for dismissal
First, of course, there is the question of the employee’s behaviour. The Tribunal has to decide, on the evidence before it, whether or not that behaviour justified the dismissal. Employers should remember that it is for them to satisfy the Tribunal why the employee was dismissed.
Article 64(1) of the Employment (Jersey) Law 2003 (the "Law") states: "In determining...whether the dismissal of an employee is fair or unfair, it shall be for the employer to show - (a) the reason (or, if more than one, the principal reason) for the dismissal...".
There do not appear to have been any cases before the Tribunal in which the employer has failed to show the reason for the dismissal.
Of course, showing the reason for the dismissal is only the first, and perhaps the easiest, step for the employer, for it almost goes without saying that the employer will have a reason for dismissal.
The first real evidential hurdle for the employer is to satisfy the Tribunal that the reason for dismissal is potentially fair. For this purpose, the employer must make sure that he has organised his evidence for the Tribunal, which can only decide the issue on the evidence before it.
Article 64(2) of the Law sets out potentially fair reasons, the main being reasons relating to capability, conduct or redundancy.
Procedural fairness
Secondly, assuming that the employer has organised his case and presented to the Tribunal sufficient evidence to satisfy it that the reason given for dismissal is capable of being a fair reason, the Tribunal has to decide whether in fact the dismissal was fair.
A fair dismissal requires (i) the conduct of the employee to be such that the employer was justified in dismissing him, and (ii) the employer’s procedures leading up to the dismissal to be fair. It is this procedural limb that can so easily catch an employer out.
Consequently, the employee may, even by his own admission, be incapable of carrying on his job or may have behaved very badly, but if the employer has not taken reasonable steps in dealing with the employee, the employee’s claim for unfair dismissal will succeed. It does not matter if a dismissal was inevitable.
Article 64(4) of the Law states: "Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall - (a) depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and (b) be determined in accordance with equity and the substantial merits of the case."
In the typical case of the employee who is, in the opinion of the employer, under performing, that fact alone will not be sufficient to enable an employer to show that his subsequent dismissal was fair. Even if the Tribunal is satisfied that the employee has in fact been under performing, it must also be satisfied that the employee has, for instance, been given warnings which made clear where he was failing.
There are many circumstances which the Tribunal will take into account when considering this second aspect of unfair dismissal, as suggested by the wording of article 64(1)(a). For instance, in a large organisation it would be reasonable to see if there is another job in the organisation better suited to the employee; it may be reasonable to offer re-training.
In the recent Voisin -v- Brown appeal, the Royal Court held that the decision as to whether a dismissal was unfair need not depend on whether an employer can be shown slavishly to have adhered to relevant procedures. In the light of this, there may be some room for an employer to cut corners if it would it be reasonable to do so. However, the cautious employer will still go further than he may think strictly necessary to ensure the procedures he has followed are beyond reproach.
Satisfying the Tribunal that his procedures were fair is the second major evidential hurdle for the employer. It is not enough just to say that redeployment was looked into or that the right warnings were given. An employer must be able to show what happened. When dealing with a potential dismissal, the procedure should be documented accurately. It is unsafe, for example, to have to rely on witness testimony as to the content of informal but important meetings. Where it is an employer’s word against an employee’s, there is an evidential risk for the employer which should be managed by the production of contemporaneous documentary evidence.
There have been cases in Jersey where the employer, having considered itself to have done everything "reasonable" within the meaning of Article 64(4), did not have the evidence to reach the standard of proof required to satisfy the Tribunal that its actions were fair. Employers need to understand that in reality it is not sufficient only to consider whether what happened was fair or not. The employer must have the necessary evidence to present to the Tribunal to prove that what happened was fair.
To say that the employer must be able to prove his case may appear to state the obvious. However, it is particularly important when appearing before the Tribunal, for an appeal against the Tribunal’s ruling is only possible on a question of law.
Conclusion
Employers must be very aware of this second aspect of the question of whether or not a dismissal is fair, for it is a difficult area.
There are those who say that this aspect, which can be called ’procedural fairness’, swings the law too far in favour of the employee and that this, coupled with the fact that employees have so little to lose by taking a case to the Tribunal, leaves the employer in a dangerous position.
The answer generally given is that a person’s employment is such a defining and important part of his life and the life of his family that it is better to offer too much rather than too little protection.
Whatever the rights and wrongs, procedural fairness is well established as a component of fairness in employment law and employers must act accordingly
The prudent approach must be to take specialist human resources/legal advice when the problem first appears on the horizon and not to delay. The requirement for procedural fairness by the employer starts as soon as the employer should first have become aware of the problem. From this moment, it would be sensible to handle the potential dismissal remembering that all of the employer’s actions could end up being considered by the Tribunal. To defend a claim successfully, the employer’s conduct should be supported by a paper trail revealing it to have been logical, clear, compassionate and just.