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The case of Barchester Healthcare Ltd v Tayeh concerns unfair dismissal – specifically whether it was reasonable for the Respondent to dismiss the Claimant

The facts in Barchester Healthcare Ltd v Tayeh

Mrs Tayeh (“the Claimant”) commenced employment with Magnolia Court Care Home (“the Care Home”) in 1996 as a registered nurse. Barchester Healthcare Ltd (“the Respondent”) subsequently took over the Care Home and the Claimant’s contract of employment was transferred to the Respondent. In December 2009 two managers of the Respondent visited the Care Home unannounced and found several shortcomings in how the Care Home was run. A number of these shortcomings concerned the area of the Care Home of which the Claimant was in charge. A series of investigatory meetings followed. However, on 10 February 2010 another incident occurred when a resident of the Care Home fell and suffered a fractured hip. The Respondent was unhappy that the Claimant hadn’t visited the resident for 3 hours when her shift began and that the Claimant hadn’t filled in the necessary paperwork. The Claimant was disciplined and dismissed  on 11 March 2010 after a disciplinary hearing on 4 March 2010. The Claimant subsequently submitted a claim for unfair dismissal.

The Employment Tribunal found in the Claimant’s favour in her unfair dismissal claim. The Respondent appealed on a number of grounds, one of which being that the Employment Tribunal had substituted its own view on fairness for that of the employer. The Claimant also cross-appealed on issues relating to remedy – she had been held to be at fault for her dismissal (50% contributory fault) and her compensation was further reduced by 12.5% for Polkey reasons.

The law relating to unfair dismissal (particularly substantive unfair dismissal)

An employee has the right not to be unfairly dismissed under s.94 of the Employment Rights Act 1996. There are two (crude) “branches” of unfair dismissal – substantive unfair dismissal and procedural unfair dismissal. A dismissal will be substantively unfair if it falls outside of the range of reasonable responses in the circumstances. A dismissal will be procedurally unfair if, for example, the Respondent fails to carry out a disciplinary procedure, fails to consider necessary evidence, or treats the Claimant inconsistently (among others).

In order for a dismissal to be substantively fair the following must have occurred:

  1. A reasonably thorough investigation must have been carried out into the allegations
  2. The Respondent must have a reasonable belief in the Claimant’s “guilt” based on these investigations
  3. The Respondent must have an honest belief in the Claimant’s “guilt”

Should these three elements be demonstrated the Respondent will have a strong chance of successfully defending the Employment Tribunal proceedings.

An important point relating to substantive unfair dismissal is that the Employment Tribunal must look at the employer’s subjective state of mind at the time of the decision to dismiss. The Employment Tribunal must not substitute its view on the objective fairness of the dismissal but must consider what the employer believed on the balance of probabilities.

The Employment Appeal Tribunal’s decision in Barchester Healthcare Ltd v Tayeh

The Employment Appeal Tribunal upheld the Respondent’s appeal and substituted in its place a finding of fair dismissal. The Employment Appeal Tribunal came to the conclusion that the Employment Tribunal had substituted its view on fairness instead of starting with the employer’s reasoning and applying the range of responses test.

Our specialist employment lawyers’ thoughts on Barchester Healthcare Ltd v Tayeh

This is an interesting case concerning unfair dismissal under employment law. The most important piece of information that can be gleaned from this judgment is that Employment Tribunals cannot consider the justice of the dismissal itself, it can only consider what the employer’s reasons for dismissing the employee were and whether the dismissal fell within the reasonable range of responses in the circumstances.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

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