Redmans SolicitorsThis case concerns a finding of unfair dismissal by the Employment Tribunal (“ET”), which was overturned in this decision by the Employment Appeal Tribunal. The Employment Tribunal found in Mrs Graham’s (“the Claimant”) favour as it believed her dismissal was outside of the range of reasonable responses (essentially a decision that no reasonable employer would have made in the circumstances). The Employment Appeal Tribunal (“EAT”) overturned this decision on the basis that it believed that the Employment Tribunal had substituted its own view on the facts of the dismissal for that of the Respondent’s. The Claimant appealed the EAT’s decision on the basis that, firstly, the EAT had improperly substituted its own view of the Respondent’s conduct and, secondly, that the Respondent’s decision to dismiss the Claimant was without the reasonable range of responses in the circumstances. The Court of Appeal upheld both limbs of the appeal.

The facts in Graham v Secretary of State for Work and Pensions

The Claimant was employed by the Respondent as an Advisory Service Manager. She commenced employed with the Respondent for some 30 years prior to the incident that culminated in her dismissal. She had an exemplary record at the Respondent prior to her dismissal.

In 2008 Mrs Graham’s daughter asked Mrs Graham to help a brother of a friend of hers to find him a job. From 10 January 2008 to February 2008 the Claimant did help Mr Moss. A number of employees at the Job Centre that Mrs Graham worked out disapproved of this behaviour and submitted written complaints as a result. Mrs Graham was then investigated and moved to another office during the investigation.

The investigation resulted in five allegations being made, the most serious of which was that Mrs Graham had allowed Mr Moss to use her computer and/or smartcard and had left him unattended whilst he did so at work. The Respondent invited Mrs Graham to a disciplinary hearing, which was held on 13 February 2009. The Respondent decided after this hearing that all five of the allegations had been proved, which left the manager handling the disciplinary (Mr Glover) to decide what disciplinary measure was appropriate. Mr Glover decided that it would be appropriate to classify the misconduct as “gross”, using the Respondent’s disciplinary handbook. Such a classification entitled the Respondent to dismiss the Claimant and she was in fact summarily dismissed on 6 March 2009. The Claimant went on to submit a claim for unfair dismissal to the Employment Tribunal. The Employment Tribunal found in her favour, considering the decision to dismiss outside of the range of reasonable responses in the circumstances, considering the facts of the case and Mrs Graham’s service. The EAT overturned this decision. The Claimant appealed to the Court of Appeal on the basis that, firstly, the EAT had improperly substituted its own view of the Respondent’s conduct and, secondly, that the Respondent’s decision to dismiss the Claimant was without the reasonable range of responses in the circumstances.

The law relating to the range of reasonable responses in unfair dismissal cases

An employer has a duty not to unfairly dismiss its employees (s.94(1) Employment Rights Act 1996). Should an employee be dismissed they must prove (now) that they have two or more years of continuous employment (should they have been employed after 6 April 2012) and that they have been dismissed. The employer must then go on to show that the dismissal was for a potentially fair reason. Once this hurdle has been cleared the employer must show that the dismissal was procedurally and substantively fair. The issue of substantive fairness is relevant in this post and is what we shall turn to next.

When dismissing employees, employers must make a decision to dismiss that is within the range of reasonable responses in the circumstances. This is a subjective test and is premised upon the employer’s state of mind at the time of the dismissal. In determining whether a dismissal was substantively fair or not the ET will look at three factors:

  1. Whether a reasonable investigation was carried out into the allegations
  2. Whether the Respondent has a genuine belief that the allegations of misconduct are proven
  3. Whether the Respondent has an honest belief that the allegations of misconduct are proven

It’s generally difficult for employees to show that an employer has made a substantively unfair decision to dismiss as (as stated before) it’s a subjective test and not an objective one.

What happens if the Tribunal substitutes its own view on fairness for that of the Respondent

In considering whether a decision to dismiss is substantively fair or not, the employer must (as stated above) make a decision to dismiss that is within the reasonable range of responses in the circumstances. This is a fairly wide test and is subjective. The ET, in considering the facts of the case, should not substitute its own view of the objective fairness of the dismissal for the employer’s subjective view. Should the Employment Tribunal make this error then the decision of the ET is improper and is open to challenge by the Respondent.

The Court of Appeal’s decision in Graham v Secretary of State for Work and Pensions

The Court of Appeal upheld both limbs of the Claimant’s appeal from the EAT. It considered that the EAT had substituted its own view on the fairness of the dismissal instead of evaluating the facts as found by Mr Glover, the manager that had dismissed the Claimant. Further, the Court of Appeal concluded that it was reasonable for the ET to find that the Claimant’s conduct merited a finding of “serious” misconduct but not “gross” misconduct (utilising the Respondent’s disciplinary procedure).  This meant that the Claimant should reasonably have received a final written warning but should not have been dismissed.

Our specialist employment lawyers’ thoughts on Graham v Secretary of State for Work and Pensions

This was an interesting read as it helps to confirm how the Tribunal and civil courts should and do consider issues of substantive fairness in a case of unfair dismissal. In particular, employers should be careful to stick within the guidelines that they issue in any disciplinary documents relating to the nature of the punishment that a particular offence warrants. If they unjustifiably exceed the stated punishment (such as dismissing the employee instead of issuing them with a warning) then they may find themselves before the Employment Tribunal. Further, this case shows that the EAT isn’t immune from substituting its own view on fairness for that of the Respondent without properly evaluating the facts of the case – it’s not just an ailment of the ET!

Redmans’ employment lawyers are based in Richmond, London.

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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