16 October 2012

When is a dismissal within the range of reasonable responses?

When is a dismissal within the range of reasonable responses?

When deciding whether a dismissal is within the range of reasonable responses, a pertinent question is whether an employment tribunal can consider matters which the employer did not take into account?

This was considered by the Employment Appeals Tribunal (EAT) in the case of Neijjary -v- Aramark Ltd. The Claimant in this case was a hospitality manager, who was working for the Respondent's contract with Goldman Sachs. He was dismissed in 2009 for a single incident of failure to check a booking sheet which lead to a complaint being made by the customer.

Both the dismissing manager and appeals officer relied on this one incident as justification for the dismissal on the grounds of gross misconduct.

The original allegations

The initial allegations against the Claimant were:

1. A complaint by a senior official of Goldman Sachs ('the Client'), Ms Pingerra, arising from a breakfast meeting arranged by the Claimant. It was said that the Claimant had failed to check the booking sheet for the event and this lead to difficulties ('the Pingerra matter').

2. Disruption of a lunch where two event hosts had to be moved from the auditorium because it had been pre-booked by someone else ('the auditorium matter').

In each matter the misconduct alleged was that he had failed to follow appropriate procedures for checking the arrangement for the event were in full and proper order.

The Claimant was suspended while the employer investigated the matter. During the investigation it emerged that earlier in 2009 another official from the Client had requested the employer not to assign the Claimant to any further events and function. The request was submitted on the basis the Claimant was not enthusiastic enough ('the Client request matter').

All three allegations were put to the Claimant and held to be proven on the balance of probabilities therefore gross misconduct was made out on the basis that he had brought the company's reputation with their client into disrepute and the Claimant was dismissed. His dismissal letter was clear that the Claimant's previous disciplinary record had not been considered.

The internal appeal

The Claimant appealed and during the appeal investigation, the auditorium matter was reversed as it was established that the Claimant had been misled by a colleague into believing the auditorium was not double booked. The appeal officer also left out the client request matter. He solely relied on the Pingerra matter which he found to be sufficient on its own to amount to gross misconduct bringing the company's reputation into disrepute.

The EATs decision

The EAT reversed the tribunal's decision stating that the tribunal had erred in taking into account matters which the Respondent had not in mind as part of the reason for dismissal. The reason for dismissal "is the reason which was extant and operative in the mind of the employer".

The moral of the story is when dismissing an employee for gross misconduct; ensure that if their disciplinary record is considered then it is referred to in any final dismissal letter (including the letter detailing the outcome of the appeal).