The Employment Appeal Tribunal has given some useful guidance to employers dismissing staff on performance or conduct grounds. When deciding if a dismissal is fair, the Tribunal must look at the employer's subjective reasons for dismissing, objectively, given all the circumstances, the employer had sufficient reason to dismiss. As such, employers need to be careful to document all the reasons why they are considering dismissing someone, and not be overly selective.
In this case, a hospitality manager was summarily dismissed for gross misconduct. Three incidents had occurred:
- a customer had, earlier, complained about the Claimant's attitude and asked that he not be assigned to any event she was involved with (the 'customer complaint issue');
- the Claimant had double booked a lunch in a meeting room (the 'double booking issue'); and
- the Claimant had failed to check a booking sheet, and a customer had complained (the 'booking sheet issue').
Mr Nejjary appealed the decision to dismiss him. On appeal, the person hearing the appeal decided to discount the double booking issue – there was some debate as to whether the Claimant had been misled by another employee. The appeal didn't mention the customer complaint issue, but instead said that the booking sheet issue alone was sufficient to constitute gross misconduct. Mr Nejjary brought a claim in the Employment Tribunal.
The Tribunal said that it was not fair to dismiss the Claimant solely on the basis of the booking sheet issue. However, it went on to find that the dismissal was fair when looked at in the context of the other two incidents as well, as well as the Claimant's past conduct. It also said that even if the dismissal was unfair, the Claimant had contributed to his dismissal and therefore his compensation should be reduced by 100%.
The EAT said that the Tribunal was wrong. It had to look at the decision made by the employer, not the decision it would have taken in the circumstances. The other matters should not have been put back into the equation, as they were not in the mind of the employer at the time of the dismissal. Further, given the fact that the other two incidents did not contribute to the dismissal (they formed no part of the reason for the dismissal), they could not result in a reduction to the award. Therefore, the EAT 'reluctantly' (presumably because it thought the employee should have been dismissed) allowed Mr Nejjary's appeal.
This is a useful reminder to employers to be careful when formulating the reasons for dismissal. It is generally a bad idea to take a 'kitchen sink' approach when dismissing employees: including every minor gripe against an employee in your reasons for dismissing them could dilute and undermine a good case. On the other hand, don't forget to include anything of significance and relevance in your reasons. You'll need to spell it out to make sure the Tribunal understands the full context of your decision.