This case concerns the temporal scope of the “reasonable range of responses” test – specifically as to whether the reasonableness of a dismissal should be considered at the date of the dismissal (the “Effective Date of Termination”) or whether it should cover the appeal process as well. The Employment Appeal Tribunal considered that a consideration of the reasonableness of the dismissal should extend past the Effective Date of Termination and evaluate the reasonableness of the dismissal until the ending of the appeal process. This therefore potentially affected liability for unfair dismissal in the present case.
The facts relating to First Hampshire & Dorset Ltd v Parhar
Mr Pahar (“the Claimant”) commenced employment with First Hampshire & Dorset Ltd (“the Respondent”) as a bus driver on 8 December 1979. On 3 November 2009 the Claimant went on sick leave. During his period of sick leave he was medically assessed by Dr Bond, who was employed in the Respondent’s Occupational Health department. Dr Bond carried out a number of assessments of the Claimant between December 2009 and June 2010. On 7 June 2010 Dr Bond submitted a report which stated that the Claimant wanted to return to work but was not yet well enough to do so. She recommended that he was not likely to be able to return to work driving buses for a period of 8 weeks. The Respondent, pursuant to Dr Bond’s report, proceeded to dismiss the Claimant on 10 June 2010. The Claimant appealed against this dismissal. At the appeal hearing the manager in charge stated that he was willing to withdraw the dismissal if the Claimant would undergo a driving assessment in 5 days’ time. The Claimant stated that he would have to check with his GP and the manager stated he was not prepared to wait any longer. The Claimant’s dismissal was therefore upheld. The Claimant subsequently made a claim for unfair dismissal in the Employment Tribunal. The Southampton Employment Tribunal concluded that the Claimant had been unfairly dismissed and the Respondent appealed on the basis that the Employment Tribunal had misdirected itself with regards to the time period over which it should consider the fairness of the dismissal.
The law relating to unfair dismissal and reasonableness of dismissal
Employees have the right, under s.94 of the Employment Rights Act 1996, not to be unfairly dismissed from their employment. A consideration of whether a dismissal is fair rests on an assessment of the two “branches” of unfair dismissal – procedural fairness and substantive fairness. Although the two branches are, to an extent, interwoven, we will in the present circumstance consider substantive fairness only.
In order to determine whether a decision to dismiss is substantively fair the “range of reasonable responses” test is used. This is a subjective test, not an objective test – whether a dismissal is fair depends on the mindset of the person dismissing and is based upon their understanding of the context of the decision to dismiss. The test is composed of three elements, involving an evaluation by the Employment Tribunal of: whether a reasonable and thorough investigation had been carried out; whether the person dismissing the employee had an honest belief in the necessity to dismiss the employee based upon this investigation; and whether the decision to dismiss was a reasonable one considering what the person dismissing the employee knew. The “range of reasonable responses” test is heavily weighted in favour of employers – should the proper procedure be carried out in dismissing the employee then generally only the most perverse decisions to dismiss will be deemed unfair.
The Employment Appeal Tribunal’s decision in First Hampshire & Dorset Ltd v Parhar
The Employment Appeal Tribunal upheld the Respondent’s appeal against the finding of unfair dismissal and remitted the case to the same Tribunal for a further hearing relating to liability. The reason the Employment Appeal Tribunal upheld the decision to dismiss was that it believed the original Employment Tribunal had considered the issue of the fairness of dismissal only up until the Effective Date of Termination and had not scrutinised the appeal process. It is well established that the Employment Tribunal should look at the whole of the disciplinary process, including post-dismissal internal appeals. This is significant as the original finding of unfair dismissal was based upon the Respondent’s unwillingness to wait 8 weeks to see whether the Claimant returned to work – a defect which the Respondent argued was “cured” by the appeal process.
Our specialist employment lawyers’ thoughts on First Hampshire & Dorset Ltd v Parhar
Claimants for unfair dismissal in the Employment Tribunal should generally bear in mind two elements related to the appeal against their dismissal. Firstly, the fairness of their dismissal will be impacted upon by both their and their employer’s conduct in the appeal process and, secondly, that the date for submitting a complaint to the Employment Tribunal for unfair dismissal runs from the Effective Date of Termination (the day their dismissal takes effect) and not from the date that the appeal process finishes.
Respondents should note similar points and take care that the manner in which the appeal process is handled is fair. If not, they are opening themselves up to claims for unfair dismissal (among other potential claims).