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Keywords: unfair dismissal, range of reasonable responses, contributory fault

Mr Anthony was dismissed for misconduct for allegedly overstating the hours he had worked. During the company appeal process it was found that he had probably done so by mistake and the fact that he had been suffering from stress mitigated against his dismissal. However, he was still dismissed. The Employment Tribunal found the Respondent liable for unfair dismissal as his dismissal was outside of the range of reasonable responses, having consideration to the amount of time he overclaimed. However, the Employment Tribunal reduced his compensation by 20% for contributory fault. The Respondent appealed on both liability and, in the alternative, that his compensation should be reduced by more than 20%. The Respondent failed on the first ground of appeal but succeeded on the latter.

The facts in Richard & Lesley Callow (t/a Callow Building Services) v Anthony

Mr Anthony (“the Claimant”) commenced employment with the Respondent (a building services company) in July 2001. He had eight years continuous employment with the Respondent. On 8 October 2009 and 9 October 2009 the Claimant was working on a building site. He submitted time sheets for these two days which claimed he had worked half an hour more on each day than he actually had. He was therefore alleged to be deliberately submitting falsified time sheets to his employer. An investigation was carried out and, subsequently a disciplinary hearing on 28 October 2010. The Claimant didn’t attend this hearing, stating he was sick, and didn’t attend further hearings. He was finally dismissed for gross misconduct on 24 March 2010 after not attending a final disciplinary hearing. The Claimant appealed his dismissal and the appeal was held on 18 May 2010. The Claimant claimed at this appeal that he had been stressed on these days and that the incorrect timesheets were a mistake. The manager handling the appeal indicated that she believed Mr Anthony. However, she decided to uphold the dismissal.

The Claimant subsequently submitted a claim for unfair dismissal to the Employment Tribunal. The Employment Tribunal held the Respondent liable for unfair dismissal, asserting that given the manager dealing with the appeal believed the Claimant innocent the decision to dismiss was without the range of reasonable responses in the circumstances. However, the Employment Tribunal indicated that the Claimant was 20% responsible for his dismissal because of his failure to attend any of the disciplinary hearings and put his case. The Respondent appealed on both points.

The law relating to unfair dismissal and the range of reasonable responses

Under s.94(1) of the Employment Rights Act 1996 employees have the right not to be unfairly dismissed. There are two “branches” of unfair dismissal – procedural unfair dismissal and substantive unfair dismissal. We’ll take a look at substantive unfair dismissal in this post.

For a decision to dismiss to be substantively unfair the decision must be outside of the “range of reasonable responses” in the circumstances. Whether a decision is unfair depends on the subjective frame of mind of the person making the decision to dismiss. In deciding whether a decision to dismiss is unfair the Employment Tribunal will consider:

  1. Whether a reasonable and thorough investigation has been carried out
  2. Whether the Respondent has a genuine belief in the Claimant’s guilt
  3. Whether the Respondent has an honest belief in the Claimant’s guilt

The Employment Tribunal must not substitute its own view for the view of the manager taking the decision. Should the manager handling the dismissal or the appeal fail to, for example, have an honest belief in the Claimant’s guilt (and this is adduced through evidence) then the decision may be unfair. However, the “range of reasonable responses” test is heavily weighted in favour of the employer.

The Employment Appeal Tribunal’s decision in Richard & Lesley Callow (t/a Callow Building Services) v Anthony

The Employment Appeal Tribunal dismissed the Respondent’s appeal against liability but allowed the appeal relating to contributory fault. The Employment Appeal Tribunal decided that the Employment Tribunal’s view on liability was neither perverse nor had it substituted its own judgment for that of the employer. However, the Employment Appeal Tribunal accepted the Respondent’s appeal on the contributory fault point as the Employment Tribunal had not given sufficient reasons for its decision to place the contributory fault percentage at 20 percent. The matter was therefore remitted to the Employment Tribunal to be heard on this point.

Our specialist employment solicitors’ thoughts on Richard & Lesley Callow (t/a Callow Building Services) v Anthony

This is a case where, at first glimpse, the decision to dismiss the Claimant seems unduly harsh. However, the Claimant certainly did not help himself by failing to attend the disciplinary hearings arranged. This is an important point for Claimants: always try and attend your disciplinary hearing for if you fail to then the decision to dismiss you can be held in your absence.

Our specialist unfair dismissal solicitors deal with all types of unfair dismissal cases and are able to take no win no fee unfair dismissal cases on.

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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