Ward v Dimensions (UK) Ltd
This week we are looking at unfair dismissal, principally dismissal for gross misconduct. For a dismissal for conduct to be fair an employer must have:
- Reasonable belief that the employee is guilty of misconduct.
- Reasonable grounds to base this belief.
- Formed the belief following a reasonable investigation into the allegation of misconduct.
The decision to dismiss will also have to be in the range of reasonable responses. Say reasonable again, I hear you ask.
This week’s question is:
Does an appeal manager having earlier involvement with a disciplinary process render a decision to dismiss unfair?
Mr Ward, the Claimant, was employed by Dimensions (UK) Ltd, the Respondent, as a Support Worker. The Respondent provided support to people with learning disabilities. The Respondent had some 7,000 employees and provided care for 3,500 people. The Claimant worked at a 24-hour care support home.
In 2016 and 2017, the Claimant raised several grievances and made protected disclosures about the Respondent’s practices. Following some of these complaints being upheld, partially upheld and dismissed the Claimant himself was subject to investigation in Autumn 2017. The Claimant was suspended by the Respondent’s Operations Director, Mr Ellis.
During the course of the investigation the Respondent became aware from three employees that the Claimant had made threatening comments to a colleague referencing shooting her with a gun and made inappropriate comments about a service user’s family in front of him. The gun comment had also been logged as an informal complaint contemporaneously. These allegations were then added to the disciplinary investigation.
In the investigation interview the Claimant admitted to making the inappropriate comment about the service user’s family but denied the threatening gun comment. However, it was admitted that the Claimant had believed he had been bequeathed firearms in a relative’s will.
The Respondent’s investigation manager then emailed the report to Mr Ellis who advised the matter proceed to disciplinary hearing. He also recommended the employee who received the gun threat report the matter to the police if she felt threatened by the Claimant.
The Claimant was dismissed for gross misconduct and appealed. The Appeal was heard and rejected by Mr Ellis, who had sanctioned the disciplinary hearing and recommended the threatened employee speak to the police.
The Claimant commenced a claim for unfair dismissal. The claim was dismissed. The Employment Tribunal found that the Respondent had conducted a reasonable investigation into the allegations, formed a reasonable belief of gross misconduct and the decision to dismiss in the circumstances was reasonable. It held that despite Mr Ellis having close involvement with the case any other appeal manager would have upheld the dismissal with the same evidence.
The Claimant appealed citing the involvement of Mr Ellis in the appeal as an error in law. The Employment Appeal Tribunal dismissed the appeal. It held that the ET had correctly considered whether Mr Ellis’s involvement had impacted the decision to dismiss and correctly decided that any manager would have made the same decision on the same facts.
The Takeaway Point
In this case, no, having an appeal manager closely involved in the disciplinary process did not render the subsequent dismissal unfair. However, given the size and resources of the employer – some 7,000 employees – this is somewhat fortuitous due to the Claimant having appeared to have committed several acts of serious gross misconduct. Had the allegations been more trivial or not as well evidenced the claim may have succeeded. Employers should always ensure the appeal manager is impartial from the initial disciplinary process where possible.
