August 11, 2022
An employer can fairly dismiss an employee in five circumstances. These are conduct, capability, redundancy, breach of statutory requirement and “some other substantial reason”.
The employer must be able to show that the dismissal fell into one of the above potentially fair reasons and that it followed a fair procedure before deciding to dismiss. What amounts to a fair dismissal procedure will depend on the reason for the dismissal.
The test as to whether the employer acted reasonably is an objective one. The Tribunal must decide whether the employer’s decision to dismiss the employee, fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have taken. One reasonable employer may take the view that the actions amount to gross misconduct, resulting in dismissal. Whereas another may decide that the employee is guilty of misconduct (which does not justify a dismissal). We are all different and therefore, it is unrealistic to expect everyone to react the exact same way. Two employers both acting reasonably, may decide on different sanctions when faced with the same situation – one dismissing, and the other issuing a warning.
The test of reasonable responses applies both to the decision to dismiss and to the investigation which led to that decision. This means that the issue for the Tribunal is not whether it would have investigated things differently, but whether the investigation was within the range of investigations that a reasonable employer would have carried out. The Tribunal must make its own assessment of whether the employer's decision to dismiss was reasonable or unreasonable, taking into account all of the circumstances of the case.
The Tribunal should not substitute its own decision for the course of action the employer should have taken. Instead, the Tribunal must determine whether the decision to dismiss falls within the band of reasonable responses to the employee’s conduct. Mitigating factors such as the employee’s length of service, prior warnings, training and internal policies and procedures will all come into play.
The recent case of Arkadiusz Grzyb v Lidl demonstrates that an employer must ensure that the “punishment fits the crime” in respect of determining what disciplinary sanction (if any) may be appropriate where an investigation finds that the employee may have a case to answer in respect of their conduct at work.
In this case the company found the employee was guilty of gross misconduct. The employee had removed some bakery items at the end of the day and applied the ‘waste not’ procedure to the bakery goods. This was on the basis that the items would have been written off and disposed of at the end of the day, so he decided to let himself and his staff buy them at a discounted rate. The employee was dismissed and appealed the decision which he also lost.
It was found that the sanction of dismissal did not come within the band of reasonable responses and was disproportionate. The Tribunal Judge determined the employee’s almost 10 years of good service and the low value of the goods involved had been overlooked. The Judge also noted that there was a lack of clarity on the discounting practice and no alternative to dismissal had been considered. The Judge further added, “in all circumstances, I find the sanction of dismissal does not come within the band of reasonable responses and is disproportionate.”
The employee was awarded compensation of £20,371 for being unfairly dismissed but his compensation was reduced to £15,278 as it was found that he had contributed to his own dismissal. The Judge also directed Lidl to pay the employee £3,138 in respect of four weeks’ notice, bringing the total amount to £18,415.
The decision serves as an important reminder that employers should ensure that any disciplinary sanction is proportionate to the alleged misconduct and apply a lesser sanction such as a written warning, where appropriate. Whilst the case was determined in Ireland, the same principles applied in the Tribunal courts of England and Wales we considered.
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About the Author
Danielle is an Associate Solicitor and has specialised in employment law and HR for 19 years. Having completed her Legal Practice Course at the College of Law Chester in 2003, Danielle started her legal career as an employment law consultant and later qualified as a Fellow of the Chartered Institute of Legal Executives. Having completed the Practical Skills Course, Danielle enrolled as a Solicitor in November 2017.
Working with both employers and employees, Danielle provides advice and representation in all areas, including contractual disputes, equality and discrimination, unfair dismissal, whistleblowing, redundancy, TUPE and wages claims. Pre-claim work includes advising on and conducting internal grievance and disciplinary proceedings, drafting/updating contracts of employment, handbooks and director service agreements, support implementing restructures, advice on general day-to-day HR matters such as sickness and holidays as well as negotiating exit packages and signing off settlement agreements.