Deciding To Dismiss – The Action Of Last Resort

Employing people can be hard work, especially those who put in a grievance on the grounds that you’re bullying them and go off sick with stress as soon as you tell them that they are falling below the standards required by the organization.

Managers have a right and a duty to manage their employees, but it must be done properly. If you’ve taken an employee through a disciplinary hearing and decided that a sanction is appropriate, make sure that any disciplinary sanction is a reasonable response to the circumstances of the case.

If you decide to dismiss, your decision should fall within the ‘reasonable band of responses’. Although developed by the Court of Appeal in 1981 it is still the test used by the courts today. The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view; another quite reasonably take a different view.

Lord Denning, British Leyland (UK) Ltd v Swift [1981] Based on my own observation of the employment tribunals’ approach, you should work on the assumption that the ‘reasonable employer’ referred to here is not made of flesh and blood like you and I.

The comparator reasonable employer is superhuman in that he has the patience of a saint, is wholly unbothered by the most appalling employee behaviour and apparently has almost unlimited resources. When I heard a tribunal say recently of a former employee who was so unco-operative, vitriolic and foul mouthed towards her employer that they just couldn't work with her anymore that it was just a ‘workplace dispute’ and that dismissal was inappropriate I was amazed.

They then went on to say that she had contributed 80% towards her dismissal, refused to reinstate her because relationships had broken down and gave her compensation of just over £1k (she had cited losses of almost £30k). Before deciding on any disciplinary penalty, consider all the relevant factors. Here are some points to consider, but remember that each case will turn on its own facts and there may be other points not listed here.

• The seriousness of the offence, and whether the procedure gives guidance.
• The penalty imposed in similar cases in the past.
• The individual’s disciplinary record and general service.
• Any mitigating circumstances (length of service, co-operation with disciplinary process, remorse shown).
• Whether the proposed penalty is reasonable in all the circumstances.
• Any current warnings for related offences.

Fully consider any mitigating circumstances. As well as any relevant circumstances, for example, ill health of the employee, or difficulties in his or her personal life, this includes matters such as:

• co-operation with the investigation;
• remorse;
• commitment to meet standards going forward.

The courts tend to take the view that long service should be regarded as mitigation. On a factual basis, I can see no reason for believing that long service equals loyalty. It could be; but equally it could be inertia. However, you would be well advised to give long serving employees a bit of extra slack. If in doubt, it’s always wisest to err on the side of caution.

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