Want to talk to an expert employment law solicitor?

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

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

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

4.52 Average

21 Reviews

Redman's provided excellent legal employment advice for me during a difficult time in my employment. Chris was my lawyer, super efficient, quick, reliable and clearly very experienced in the matter. Could not ask for a better law firm to deal with your query if you are in need of some help. Would definitely use them again in the future. Highly recommending Chris.

Posted 1 month ago

Steven

Chris Hadrill was very professional and responsive. I would highly recommend him

Posted 1 month ago

Dinah

Very Efficient, with very quick email reply’s. I had a matter that needed resolving within a very short space of time and Redmans Solicitors were great with dealing with my matter quickly.

Posted 1 month ago

Ankar

At Redmans the solicitor that was dealing with me was Chris. He dealt with my situation smoothly with clear guidance and explanation

Posted 1 month ago

Anonymous

Clear, concise advice and guidance delivered by an experienced and very capable solicitor, within the timelines required

Posted 2 months ago

Anonymous

Very efficient service. I never had to wIt for more than a day for a reply to any of my queries and the matter was dealt with swiftly.

Posted 2 months ago

Anonymous

Very timely, thorough and helpful advice. Friendly and considerate of the needs of the client

Posted 2 months ago

Anonymous

Very prompt and attention to detail. Thank you for the service

Posted 2 months ago

Chris

Couldn’t be happier with how Redmans successfully handled our seemingly tricky case. By being clear and detailed every step of the way, with the utmost professionalism and courtesy, they made it an informative and eye-opening process, taking the stress out of the situation and ultimately delivered what you would want from such a service. I fully appreciate everything they have done, and if I am ever in need of such services in the future, they will be the first number I contact. Excellent.

Posted 2 months ago

Anonymous

Excellent work delivered with great quality

Posted 2 months ago

Dominic

Chris Hadrill was a great help both in terms of his advice and his expertise. He explained my options to me clearly and concisely enabling me to quickly make the right decision for me in the circumstance. I would not hesitate to recommend Chris or Redmans to friends or colleagues, and would certainly make Redmans my first port of call should I require a similar service in the future.

Posted 2 months ago

Kurt

Redmans gave excellent advice and helped me understand everything in clear concepts. Thank you!

Posted 2 months ago

Anonymous

Resolved my issues

Posted 2 months ago

Keith

Quick fast professional service.

Posted 2 months ago

Michael

"Prompt, efficient and practical advice that resulted in me getting some additional money tax free."

Posted 2 months ago

Anonymous

Patient and thorough advice given to me around my Settlement Agreement

Posted 2 months ago

Anonymous

"Excellent service, getting back to you promptly giving you very good advice."

Posted 2 months ago

Anonymous

I found Chris Hadrill to be an excellent help, he is very knowledgeable and gives good ,concise ,strategic advice .He makes himself readily accessible when you need him.I would personally highly recommend him.

Posted 2 months ago

Christine

Professional, efficient and reliable service provided. I strongly recommend them and I would use this service again.

Posted 2 months ago