In Nejjary v Aramark Ltd, the Employment Appeal Tribunal ("EAT") has held that, in assessing the reasonableness of a dismissal for misconduct, a Tribunal was wrong to take into account matters which the employer had not considered when taking its decision to dismiss.  Additionally, the Tribunal erred in finding that the employee had contributed 100% to his dismissal, and thus would not be entitled to compensation.

N was a Hospitality Manager for A Ltd.  In September 2009, N was suspended due to two separate complaints concerning his failure to follow proper procedures.  The first complaint related to a failure to check a booking sheet for a breakfast meeting.  The second complaint concerned the double booking of a lunch.  Between the investigatory meeting and disciplinary hearing, a further complaint was received relating to N’s performance.  N was dismissed for gross misconduct on the basis of all three complaints.  On appeal, whilst A Ltd discounted the second and third complaints, it upheld the dismissal on the basis that the first complaint alone was enough to constitute gross misconduct. 

The Tribunal dismissed N’s claim for unfair dismissal, noting that if he had an unblemished record or a record of minor but unrelated issues then the dismissal would not have been reasonable. However, in considering all the circumstances, in particular the other complaints, it held that A Ltd had acted reasonably in dismissing N.  Further, it found that, even if the dismissal was unfair, N’s own conduct led to his dismissal and therefore they would have reduced compensation by 100%.  N appealed.

The EAT upheld the appeal and found that the Tribunal had erred in introducing factors relating to N’s conduct which had not formed part of the employer’s decision to dismiss.  The employer had dismissed purely due to the first complaint.  By taking into consideration N’s other conduct, the Tribunal had substituted its own view for that of the employer.  By the Tribunal’s own admission, the first complaint alone was not a sufficient reason for dismissal.  The EAT therefore held N’s dismissal to be unfair.   Similarly, the EAT found that, in assessing contributory fault, the Tribunal had mistakenly taken into account matters not connected to the dismissal and this finding was therefore also overturned.  The EAT remitted the question of remedy to the Tribunal for further consideration.

Impact on employers

  • This case is a useful reminder that, in applying the reasonable responses test, a tribunal will be restricted to assessing only the issues taken into consideration by the employer in taking the decision to dismiss.  Whilst the statutory test for whether or not a dismissal is fair refers to “all the circumstances of the case”, the relevant circumstances are those taken into consideration by the employer, and not all circumstances the Tribunal may deem relevant.
  • Employers should be therefore be cautious when setting out the reasons for a dismissal and should ensure that any relevant previous warning or conduct is cited if they have been taken into consideration in deciding that dismissal is reasonable.