Dismissals deemed to have been unfair do not always seem unfair
This might certainly seem to be the case in Heath v Simon (Floralies), where an employee, who had been using her employer’s fuel card for personal use without the employer’s knowledge or consent, was deemed to have been unfairly dismissed. The tribunal based this finding on the lack of disciplinary proceedings prior to her dismissal, and awarded her reduced compensation at 50%. This outcome may be surprising, as use of an employer’s funds without consent is typically regarded as misconduct warranting fair dismissal. However, the issue here is not why the employee was dismissed, but how.
The crucial issue in this case was that the employer had not implemented the proper disciplinary process. Firstly, he had initially told the employee that he was giving her notice because of her attitude, and made no mention of her usage of the fuel card. Secondly, the employer had not investigated the situation prior to dismissal, and the employee was not given the genuine reason for dismissal, let alone allowed the opportunity to express her version of events. Finally, there was no offer of appeal. Overall, although the employer had a fair reason for dismissal, the lack of disciplinary proceedings meant the Tribunal found in favour of the employee, and awarded her compensation. Moreover, after receiving advice the following day, the employer attempted to retract the dismissal. This serves to highlight the importance of seeking employment advice prior to making any decisions, to ensure proper procedure is followed and avoid the potentially costly lesson.
Similarly, in Baudin v The Towing Group, the employee was unable to continue working due to an ankle injury. Consequently, the employer found it increasingly difficult to pursue the course of business as usual, and, after several attempts at maintaining employment through different positions, eventually dismissed the employee. It was agreed in this case that both employer and employee kept an open channel of communication throughout, but lack of information regarding treatment of the injury and recovery meant neither party could predict when the employee may have returned to work. Yet, the Employment Tribunal found this to be a case of unfair dismissal, due to the failure by the employers to make reasonable independent enquiries as to the probable date of the employee’s return to work, and make an informed decision on that basis. Therefore, despite the attempts of the employer to remain fair and maintain employment, the Tribunal still made an award of compensation without reduction or variation.
Thus, there is an important lesson to be learned here for employers seeking to dismiss their employee. Certain steps should be followed to ensure the proper procedure is followed:
- Conduct a fair disciplinary and investigatory process:
- If the employer determines to dismiss the employee, the employer must show a fair reason for dismissal, which could be any one of the following:
- capability (including physical and mental) or qualifications of the employee for performing work of the kind which they were employed to do
- conduct of the employee
- The employee could not continue to work in the position due to a contradiction of a duty, or a restriction imposed by or under an enactment; or
- Some other substantial reason.
- The employee should be given the opportunity to appeal the decision to dismiss.