There
is a really interesting report this week of a decision by the Employment Appeal
Tribunal that looks at a number of current issues about fairness both in
general terms and procedurally, the approach of the ETs in making decisions
about what is fair and the relevance of the right to be accompanied at a
disciplinary/grievance hearing. Some
useful guidance and all worth thinking about.
The case is Talon Engineering v
Smith.
Mrs
Smith was dismissed because of an email exchange in which she described an
“unnamed” colleague as a “knob” and a “knobhead”.
General
unfairness
The
Employment Tribunal took the view that the derogatory reference to a colleague
was essentially “venting to a close friend”.
The colleague was unnamed. The
course of email correspondence between the Claimant and her friend showed that
the two of them shared “lots of personal information in very chatty and
informal emails”.
The
Judge said “it is not clever and it is not funny… but the Tribunal was entitled
to conclude that it did not amount to serious gross misconduct that puts the
business reputation of the Respondent at risk”.
I
think that is a pretty sensible conclusion given the context.
Substitution
mindset
The
Respondents argued on appeal that the Tribunal had failed to judge
reasonableness by the standard of the reasonable employer. Instead, they said, the Tribunal had substituted
its own view for the views of the employer.
Tribunals are not allowed to do that.
The
Tribunal had thought that dismissal was a “gross overreaction” – bearing in
mind, not least, that the Claimant had 21 years’ service with an unblemished
record.
The
Judge quoted an earlier authority (Kefil)
to this effect: “substitution mindset is all too easy to allege… employers who
do not like the result which a Tribunal has reached… seek to argue that the
very fact of the result… must indicate a substitution”.
It
is refreshing to see that here EAT was clear: “the Tribunal has been
punctilious in assessing matters by reference to a reasonable employer and not
their own views”.
This
is a reminder to employers that not every decision on fairness that goes against
them is going to be appealable to EAT on the basis of “substitution mindset” –
a useful and indeed refreshing reminder.
The
right to be accompanied
The
Respondent had adjourned the disciplinary proceedings on one occasion because
the Claimant was ill.
The
Claimant sought a further adjournment, for two weeks, because her trade union
official was unable to attend on the new date.
The
Respondents declined the second request.
The ET took the view that the Respondents had acted in a manner that was
“entitled and hasty”.
It
seems that the mere fact of this failure to adjourn would have rendered the
dismissal unfair in and of itself.
That
is also a useful decision for Claimants and Trade Unions – it gives real teeth
to the right to be accompanied. I think
one has to have regard to all surrounding circumstances and I think that here
the fact that the adjournment was sought for a relatively short period (a
fortnight) was relevant. The Judge in
the EAT made it clear: sometimes the employer simply cannot be expected to wait
any longer. Nevertheless, some useful
guidance on adjournments in this decision.
There
is also something in the case about “Polkey” reductions but I have probably
said enough for now.
An
interesting, robust and straightforward decision that
tackles quite a few of the practical issues that we see in our employment team
on behalf of Claimants on a day to day basis.
Paul Scholey - Senior Partner
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