Health and Social Care Update - November 2018
Nov 20 2018
Policy and law relevant to those involved in health and social care work.Read More
John Moore reports on two recent decisions which provide useful, practical points on dealing with misconduct dismissals.
It is widely understood that, for a dismissal to be fair, the employer must show
Matters may become more complex in respect of dismissals for misconduct, where previous warnings are live when the employer is taking a decision to dismiss.
An employer had to grapple with this issue in the case of Wincanton Group plc v Stone . The facts of the case were that the claimant lorry driver, Mr Stone, had received a first written warning from his employer, Wincanton, for refusing to agree a change in working practices. Mr Stone unsuccessfully appealed against the warning. During the currency of the first written warning, Mr Stone was dismissed following a serious accident caused by him pulling out of a loading bay, contrary to the traffic signalling system. While such an offence might normally attract a final written warning, Wincanton decided to dismiss Mr Stone, regarding the earlier warning as ‘tipping the balance’ in favour of dismissal.
Mr Stone brought a successful claim for unfair dismissal, and Wincanton appealed. The Employment Appeal Tribunal (EAT) allowed the appeal, and remitted the case back to a tribunal. In doing so, the EAT provided some helpful guidance about how warnings should be weighed in the balance when tribunals (and, by extension, employers) are assessing the fairness of a decision to dismiss – particularly where the first and second misconduct is dissimilar in type. In short, their comments were as follows.
It has long been established that, in order to be fair, a dismissal must fall within the ‘range of reasonable responses’ available to the employer. The ‘range of reasonable responses’ test applies not only to the question of whether the sanction of dismissal was permissible, but also to the question of whether the employer's procedures leading to dismissal were adequate.
In addition, human rights may be engaged in the employment field, if the potential impact of a decision on the employee is sufficiently serious. Furthermore, under the Human Rights Act, the UK courts are required, as far as possible, to interpret all legislation in a way that is compatible with the European Convention on Human Rights (ECHR). Article 8 of the ECHR states that "everyone has the right to respect for his private and family life, his home and his correspondence".
The adequacy of an investigation and the ‘range of reasonable responses’ test was subject to an Article 8 human rights challenge in Turner v East Midlands Trains . This case concerned a senior train conductor, who was dismissed because her employer concluded that she had been fraudulently selling false tickets to the public and keeping the proceeds for herself. The employer decided that she had been doing this by manipulating the ticketing system to create ‘non issued tickets’ (i.e. tickets that had to be returned because they are faulty or unwanted) and fraudulently selling those tickets on. There was no direct evidence of this happening, but over a 36-week period, the conductor had 132 ‘non-issued tickets’ generated by her machine, whereas the next highest number of non-issued tickets for a senior conductor was twenty.
Ms Turner argued that the seriousness of the allegations meant that her human rights were engaged, and that the potential impact of the decision on her future adversely affected her rights under Article 8 of the ECHR. Therefore, she argued, stricter procedural requirements should be put in place, beyond the usual ‘band of reasonable responses’ test.
The Court of Appeal agreed that Article 8 was engaged, but held that the ‘range of reasonable responses’ test is sufficiently robust to be compatible with employees’ rights under Article 8. In reaching its decision, the Court of Appeal made the following practical points.
This is a helpful and no nonsense decision by the Court of Appeal. Even if Article 8 is engaged, it does not impose a heavier burden on employers than we are used to. The ‘range of reasonable responses’ test lives to fight another day; and the points outlined above provide useful guidance on dealing with misconduct: the seriousness of allegations should be reflected in the scale of the investigation – but the investigation need not be exhaustive, even if it might be exhausting!