Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

The case of R & M Gaskarth v Campbell revolves around the fairness of the dismissal of a hotel manager where the takings for the hotel had been consistently falling for a number of years and the manager was deemed to have a negative attitude by his line manager. The Employment Tribunal concluded that the dismissal was outside of the range of reasonable responses and therefore unfair as the Respondent had drawn unfair comparisons with the takings of other pubs in the locality. The Employment Appeal Tribunal upheld the Respondent’s appeal as it believed the Respondent had substituted its own view on fairness for that of the Respondent.

The facts in R & M Gaskarth v Campbell

Mr Campbell (“the Claimant”) commenced employment with R & M Gaskarth (“the Respondent”) at the Eagle Hotel (“the hotel”) in Rochdale in October 2005 as manager. The Respondent owns 50 to 60 public houses in the north-west of England. The Claimant initially ran the hotel together with his partner but they separated in or around June 2007.

By October 2009 the takings of the hotel had dropped significantly and the Respondent became concerned that the Claimant’s break-up had negatively affected his ability to run the premises. The Respondent therefore set certain revenue targets for the Claimant to meet. The Claimant consistently failed to meet these targets and was given a written warning in June 2010, with it being pointed out to him that other pubs in the area had not experienced such a significant fall in revenue. The Claimant was unhappy with this and pointed out a number of “adverse factors” which were negatively affecting his ability to increase custom at the hotel, including the closure of a number of local businesses, the Respondent’s policy not to allow entertainment in its pubs (such as television and gaming), the fact that the Claimant was single whereas the other pubs were managed by partners, and the amount of competition locally for customers. The Claimant was unable to increase the revenue after 2010 and was dismissed by the Respondent in November 2010 for the reason of capability, namely his inability to create a “mein host” atmosphere at the pub and his alleged negative attitude.

The Claimant subsequently complained to the Employment Tribunal of unfair dismissal. The Employment Tribunal found the Respondent liable for unfair dismissal, concluding that the dismissal fell outside of the range of reasonable responses in the circumstances. This was primarily based upon the fact that the Employment Tribunal felt it too crude to draw a simple comparison between the circumstances at the Eagle and other public houses in the vicinity. However, a Polkey reduction of 40% was made. The Respondent appealed on liability, the Polkey reduction and mitigation of loss.

The law relating to unfair dismissal and the range of reasonable responses test (the “Burchell test”)

Under s.94 of the Employment Rights Act 1996 employees have the right not to be unfairly dismissed (subject to certain other qualifications). Under section 98 if an employee is dismissed the employer must put forward a potentially fair reason for the dismissal, otherwise the dismissal will be unfair. The agreed potentially fair reason in the circumstances was capability. Once a potentially fair reason is established for the dismissal the Claimant must demonstrate, on the balance of probabilities, that their dismissal was either substantively or procedurally unfair. We will deal with the issue of substantive fairness in this post.

In order for a dismissal to be substantively fair the dismissal must fall within the range of reasonable responses in the circumstances. This means that the dismissal of the employee must be reasonable. The evaluation of its reasonableness depends on three factors:

  1. Whether a fair investigation had been carried out
  2. Whether the Respondent had an honest belief that the allegations made were true
  3. Whether the Respondent had a genuine belief that the allegations made were true

If the Employment Tribunal believes that the Respondent has failed to fulfil any one (or more) of the criteria in the above test then the dismissal will be deemed outside of the range of reasonable responses and therefore substantively unfair (and hence an unfair dismissal). However, the Employment Tribunal can’t substitute its own view on the fairness of the dismissal for the subjective view of the Respondent at the time of the dismissal. The fairness of the dismissal is therefore premised upon what facts the Respondent had before it at the time of the dismissal and whether it was justified in believing what it believed based on those facts.

The Employment Appeal Tribunal’s judgment in R & M Gaskarth v Campbell

The Employment Appeal Tribunal decided that the Respondent’s decision that the fall in the takings of the Eagle was the Claimant’s fault was not an unreasonable one in the circumstances. Further, the Claimant’s dismissal was not a “spur of the moment” dismissal but the issues had been ongoing for at least 18 months and was based primarily upon the Claimant’s failure to create a “mein host” atmosphere. The Claimant had been given time to improve but had failed to do so. The Employment Tribunal therefore allowed the appeal against the finding of unfair dismissal and remitted the case to a fresh Employment Tribunal.

Our specialist employment lawyers’ views on R & M Gaskarth v Campbell

The Employment Appeal Tribunal makes it quite clear in this case that they do not believe that the Claimant’s dismissal was an unfair one, based upon the Respondent’s knowledge at the time of the dismissal. In our view the decision of the Employment Appeal Tribunal was the correct one. As harsh as it may have been on the Claimant the Respondent had given the Claimant a significant period of time to redress the fall in takings and had based his dismissal upon both his failure to increase the takings and his failure to create a “mein host” atmosphere.

Redmans are no win no fee unfair dismissal specialists and represent employers and employees in the Employment Tribunal.

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

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

124 Reviews

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 2 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 3 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 3 months ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 3 months ago

Anonymous

Easy to get hold of. Quick.

Posted 4 months ago

Owen J

Very helpful, efficient service.

Posted 4 months ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 4 months ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 4 months ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 4 months ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 4 months ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 4 months ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 4 months ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 4 months ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 4 months ago

Tim O

Experienced and competent advisors

Posted 4 months ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 4 months ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 4 months ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 5 months ago

Anonymous

Good service

Posted 5 months ago

Anonymous

Excellent professional service. Highly recommend.

Posted 5 months ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 5 months ago