Orr v Milton Keynes Council 2011 EWCA Civ 62

In determining the fairness of a dismissal a tribunal must assess the reasonableness of the employer’s conduct, not the level of injustice to the employee.

Mr Orr was employed by the Council as a youth worker. The Council took disciplinary action against him for two incidents and he was dismissed for gross conduct. Mr Orr then brought a claim for unfair dismissal and race discrimination. The tribunal held that the cause of Mr Orr’s rude and aggressive behaviour was due to his employer’s attempt to reduce his working hours without his agreement and a racial remark made by his manager. It held nevertheless that the dismissal was fair and non-discriminatory. Mr Cove, a senior manager, who was appointed by the Council to oversee the disciplinary process had not known of the manager’s behaviour or the comments made, at the time of reaching a decision to dismiss. Mr Orr appealed to the Employment Appeal Tribunal and the Court of Appeal arguing that at the time of his dismissal the facts were known at a sufficiently level of seniority within the Council albeit not by the decision maker which exonerated him or at least mitigated his offence.

The Court of Appeal by a majority decided that an employer cannot be deemed to have knowledge of all the facts made to its employees when deciding whether it was reasonable for it to dismiss. As long as a fair and thorough investigation had been carried out it is only the facts known to the decision maker that are relevant in determining whether the dismissal was fair.

Key point: The test for reasonableness in dismissal cases still depends on whether in the circumstances including the size and administrative resources of the employer’s undertaking the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee which is determined in accordance with equity and the substantial merits of the case. Provided there has been a thorough investigation that will usually be sufficient.

  • Final warnings

Davies v Sandwell Metropolitan Borough Council UKEAT/0416/10

The EAT held in this case that Miss Davies’ failure to appeal against a final warning did not prevent a tribunal from looking behind the validity of that warning when considering the reasons for the decision to dismiss.

Miss Davies was employed as a teacher by the council. In 2005 she was given a final written warning and appealed but her appeal was dropped when she realised she could be dismissed. In 2006 following further disciplinary proceedings the council took account of the final warning and dismissed her. Her unfair dismissal claim was unsuccessful and she appealed. The EAT held that where a final warning was issued, the absence of an appeal could not have the effect of making the final warning valid, so her appeal was allowed.

If an earlier warning was clearly unfair, a failure by an employee to appeal it does not rectify that unfairness or validity. An employer should be proactive in remedying that invalidity rather than waiting for the employee to raise it formally.

Key point: If there is a risk of an employee challenging any subsequent dismissal, employers should ensure that the decisions imposing its sanctions are correct, the disciplinary procedures are fair and that they are reasonably applied. Otherwise the decision to dismiss may be outside the band of reasonable responses and make the dismissal unfair.

  • Offensive email

Gosden v Lifeline Project Ltd ET2802731/2009

Mr Gosden was employed by Lifeline, a charity. He was assigned to work in Moorland Prison in 2006 and then another prison in 2007. In 2008 outside working hours and from his home computer Mr Gosden forwarded an offensive email to the home computer of a Mr Yates, a colleague employed by HMPS. It contained material of a racist and sexist nature. It was a chain email and Mr Yates forwarded it to a colleague who worked at Moorland prison and so the email entered the computer system of HMPS. The matter was escalated to a formal internal investigation. Mr Gosden admitted that he had sent the email to Mr Yates. Mr Gosden was suspended and Mr Yates was compulsorily retired. Lifeline began its own investigation into Mr Gosden’s conduct. The panel found him guilty of gross misconduct by having carried out an act which might damage their reputation and integrity and for having breached its equal opportunities policies. Mr Gosden had been excluded by HMPS from all prisons in Yorkshire and Humberside so his current employment was unsustainable and that was a further ground for dismissal. He was dismissed in April 2009 and his appeal against dismissal was unsuccessful. His claims in the tribunal for unfair and wrongful dismissal were unsuccessful. The tribunal also considered the Human Rights Act 1998 and whether it was reasonable for an employer to dismiss for misconduct which took place outside the workplace. In this case having sent it to another employee’s home computer it was not intended to be private and Mr Gosden was aware that as a chain email asking recipients to pass it on he had no control of the email once it was passed to Mr Yates.

Key point: This is an important decision for employees who frequently send on chain emails outside work and who may not realise that their employment position may be jeopardised. This is one of the first decisions on cases involving bringing an organisation into disrepute as a result of the use of social media.

  • For some other substantial reason - breakdown of relationships at work

Ezsias v North Glamorgan NHS Trust UKEAT/0399/09

Mr Ezsias was employed by the Trust as a consultant surgeon from July 1998. He was dismissed with immediate effect on 1 February 2005 with 3 months’ pay in lieu of notice following an irretrievable breakdown of relationships between him and others and his department.

The way Mr Ezsias raised concerns about standards in the department was very blunt and he antagonised a lot of people. Relationships within the department deteriorated to the extent that 9 senior managers in the department signed a petition in 2003 expressing a complete lack of confidence in and total breakdown of the relationship between him and his senior staff.

He brought a claim for automatic unfair dismissal alleging his dismissal was connected with qualifying disclosures and that the Trust had failed to follow their contractual disciplinary procedure. The tribunal dismissed his claim as his disclosures were not protected disclosures and his making them was not the reason for the dismissal. No formal disciplinary hearing was appropriate given that the dismissal was for some other reason and not conduct. He appealed and lost. The appeal tribunal found that his dismissal was fair and for some other substantial reason. There was a difference between dismissing him for conduct causing the relationships to break down and dismissing him for the fact that those relationships had broken down.

Key point: Employers should consider carefully the option of the “some other substantial reason” route rather than conduct route when considering breakdown of relationship dismissals.