Fairness must be judged by what responsible officer knows

The Court of Appeal has confirmed in a recent decision that the fairness of a dismissal must be judged solely by what those responsible for the decision knew (or ought to have known) at the time, even if crucial facts which could have exonerated the employee were known to another member of staff.  

The principle that what matters is what is in the mind of the decision maker can work in the employee’s favour, for example where further misconduct only comes to light after the decision to dismiss has been taken. But here it produced a harsh result: unknown to the dismissing officer and the appeal panel, the misconduct for which the employee was dismissed was provoked by a racially-motivated remark by his line manager. However the full story did not emerge until an employment tribunal hearing two years later.  

The dismissal would have been unfair if the employer had not carried out a reasonable investigation before deciding to dismiss. But in this case the employment tribunal had concluded that the employer could not be faulted on how it had approached things, though it might have been better for all concerned if the investigation had unearthed the full facts.  

Employer should consult over redundancy pool of one  

Last year the Employment Appeal Tribunal (EAT) decided a case involving an employer that wished to reduce its headcount in the HR department from two to one, and decided that the more senior post, occupied by Ms Bonassera, was the one to go. As she was the only employee working at that level it chose a redundancy pool of one, with the result that Ms Bonassera was dismissed on redundancy grounds.  

The EAT said that it was clearly unfair to have failed to consult Ms Bonassera about the redundancy pool. It should at least have explored with her whether she was prepared to work at a more junior level for a reduced salary, which could possibly have meant a "bumped" redundancy of the more junior member of the team. The most obvious lesson from this case is the risk an employer runs if it fails to consult on the composition of the pool, whatever its composition and however small it is.  

It may be safer to dismiss the old-fashioned way  

The Supreme Court has confirmed that when a summary dismissal is communicated by letter, the time limit for bringing an unfair dismissal claim does not start to run until the employee has actually read the letter, or has had a reasonable opportunity to do so. It rejected the employer’s argument that the time would start to run when the letter would have been expected to come to the recipient’s attention – ie, normally the day it arrives in the post.  

In this case the employee was away from home on a Thursday when the letter arrived informing her of the outcome of her disciplinary hearing. She had gone to visit her sister who had just given birth. She did not get back home until late on Sunday. The Supreme Court upheld the employment tribunal’s decision that the effective date of termination was the following Monday, when it considered the claimant first had a reasonable opportunity to read the letter.