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September 2010 Dismissal for misconduct

Dismissal for Misconduct

It’s a common source of confusion, writes Stephen Brookes, whether an employee can be dismissed for alleged misconduct in the workplace and what criteria the employer must apply before arriving at its decision to dismiss. In 1980, the case of BHS Stores v Burchell stated that an employer, after conducting a proper investigation into the facts, needed to hold a genuine belief in the guilt of the employee, a belief held upon reasonable grounds. The decision to dismiss must be within the range of responses open to a reasonable employer. It is not, however, necessary for the employer to be convinced of guilt beyond reasonable doubt; all an employer needs to believe is that the employee was more likely guilty of the misconduct than innocent. An employee dismissed may wish to bring a claim for unfair dismissal before the employment tribunal. The employee will have to demonstrate that the decision to dismiss was outside of the range of reasonable responses the employer could have made.

The recent case of Wilson Devonald Ltd v Suckling (3rd August 2010) is a case on this point.

The employee was a receptionist at a professional firm who was allegedly rude to two clients and allowed two other clients access to areas of the building which were off limits to anyone but staff members. She was subjected to an investigation into the circumstances and dismisssed. She issued tribunal proceedings and the tribunal decided in her favour. Accepting that:-
(a) a reasonable investigation had been carried out and
(b) the employer had reasonable grounds for believing she had been guily of gross misconduct,
the tribunal concluded that no reasonable employer would have dismissed her. The employer appealed to the Employment Appeal Tribunal which decided the appeal in favour of the employer.
Stephen Brookes explains:

Once the tribunal had concluded that the employer had conducted a reasonable investigation, and held reasonble grounds for a belief that the employee was probably guilty of misconduct, it would be very hard indeed to categorise a decision to dismiss in those circumstances as outside the range of responses open to a reasonable employer. Some employers, faced with what the employee had done, would have dismissed the employee and the tribunal had wrongly substituted its view for the view of the hypothetical reasonable employer. The tribunal had applied the correct legal test but had not applied it properly.

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