The Employment Appeal Tribunal has upheld an employment tribunal’s decision in Network Rail Infrastructure Limited v Mockler that a dismissal for misconduct in failing to observe safety rules was unfair.
What does this mean?
Despite finding that the employer had carried out a reasonable investigation and followed a reasonable procedure, the tribunal found that the decision to dismiss fell outside the range of reasonable management responses.
This was because:
- the employee was not aware that a safety certificate he was required to hold had been suspended until the investigation, but that was given as one of the principal reasons for his dismissal;
- the risks posed by the employee’s conduct were minimal;
- the tribunal found it difficult to see how he could have breached one of the safety rules with which he was charged;
- there had been a difference between the treatment of the employee and another employee in that they were both in breach of the safety rules, but only one of them was dismissed; and
- the employee had an unblemished record of 23 years’ service and the dismissal was for a first offence.
What should employers do?
Employers should weigh up the reasonableness of dismissing an employee in the particular case, even where there has been a breach of safety rules. It will generally be wise to take specific legal advice before deciding to dismiss staff.