In the recent case of Hewston v Ofsted, the Court of Appeal took a closer look at what ‘reasonable’ should look like in the context of a dismissal for gross misconduct. It gave a useful restatement of the principles applying to conduct dismissals. But before we delve into the details of that case, a quick look at the basics.
The law on unfair dismissal can be broken down into three key parts:
- Eligibility – is the person an employee with at least two years’ continuous service?
- Fair reason – can one of the five potentially fair reasons be relied upon?
- conduct (e.g. misconduct)
- capability (e.g. poor performance or ill health)
- illegality
- redundancy
- some other substantial reason (SOSR)
- Reasonableness – even if there is a fair reason, the dismissal must be handled reasonably. This is often the most complex and contested part. The law (s98(4) Employment Rights Act 1996) says that the employer must act fairly in all the circumstances in deciding to dismiss for the reason relied upon. Dismissal must also fall within the range of reasonable responses that a reasonable employer might have (Sainbury’s v Hitt).
The concept of reasonableness is generally split into two different parts: procedural fairness (did the employer follow a fair procedure) and substantive fairness (was it reasonable to treat the reason as sufficient to dismiss). These two separate strands will be looked at in all dismissals, regardless of the reason being relied upon.
Conduct dismissals
Whether it will be reasonable for an employer to dismiss an employee for a conduct reason requires consideration of the classic ‘Burchell test’ set out in British Home Stores v Burchell: Whether, at the time of dismissal, the employer believed the employee to be guilty of misconduct; had reasonable grounds for believing that the employee was guilty of that misconduct and had carried out as much investigation as was reasonable in the circumstances.
The key component in conduct cases is often the quality of the investigation. An employer can only have a reasonable belief in misconduct if they have established the surrounding factual circumstances. A detailed investigation does this. It is also crucially important that the employee knows the substance of the allegation made against them and is given the opportunity to respond.
The Acas Code of Practice on Disciplinary and Grievance Procedures applies to conduct dismissals. It is a useful point of reference for what is required of employers looking to act reasonably. According to the Acas Code, an employer considering a case of alleged misconduct should:
- investigate the issues;
- inform the employee of the issues in writing;
- conduct a disciplinary hearing or meeting with the employee; and
- inform the employee of the decision in writing and include a right of appeal.
Spotlight on Hewston v Ofsted
In the recent case of Hewston v Ofsted the Court of Appeal took a closer look at what ‘reasonable’ should look like in the context of a dismissal for gross misconduct. In this case the Claimant, an experienced Ofsted inspector with a clean disciplinary record, was summarily dismissed after touching a pupil’s forehead and shoulder to remove rainwater. Upholding the Employment Appeal Tribunal’s finding of unfair dismissal, the Court of Appeal gave a useful restatement of the principles applying to conduct dismissals:
- Examples of gross misconduct are generally listed in disciplinary policies. If something is not included in the list this does not automatically mean that an employer cannot summarily dismiss for it.
- However, if the act is unlisted, it will be critical to the fairness of any dismissal to consider whether the employee could reasonably expect the employer to regard the act as serious misconduct having regard to the nature of the act and the surrounding circumstances.
- An employer should not be able to bump up the seriousness of conduct which is not capable of justifying dismissal just because the employee failed to show contrition.
- Loss of trust and confidence and the risk of reputational harm can be a relevant factor in reaching a disciplinary sanction but “it cannot be a stand-alone basis for such a decision; there must at least be some misconduct”.
- Employees should be provided with copies of all documents relevant to anything in dispute in the disciplinary process prior to any decision being reached.
In this case, touching a pupil was not listed as an example of gross misconduct and the Claimant could not reasonably have expected the Respondent to regard it as serious misconduct given the context. Given that conclusion, a lack of contrition could not ‘bump up’ the seriousness of the conduct to create a fair conduct dismissal. The Claimant was also not given a copy of the initial pupil complaint against him.
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HR Inner Circle members can head to our Vault where you can access a suite of template letters and flowcharts to assist in conduct dismissal situations from commencement of investigation through to appeal outcome.