The classic “range of reasonable responses test” in unfair dismissal cases means that a harsh dismissal is not necessarily an unfair one. In fact, employment tribunals are reluctant to interfere with dismissals that, on first glance, may seem a heavy-handed response to misconduct.
In these 12 cases, can you work out whether or not the harshness of the dismissal meant that it was unfair?
Read the brief facts below and decide whether or not the tribunal or court found the dismissal to be within the “range of reasonable responses”, or was so harsh that no reasonable employer would have come to the decision to dismiss.
Click the judgment link to find out whether the dismissal was found to be fair or unfair. A summary of the outcomes in each case is available at the end of the article.
1. Forwarding document on proposed pension changes found on shared drive
M found out about proposed changes to his company’s pension scheme, with one of the options being the closure of its final-salary pension scheme.
He did a search on the general “G” drive for pension information and discovered an unprotected draft pension consultation document.
M emailed the document, along with a presentation on the proposed changes, to a number of colleagues with an interest in the pension scheme, including a union representative.
M was suspended and an investigation was undertaken. It emerged that the availability of the documents to all staff was the result of system faults and human error.
M was dismissed after a disciplinary hearing. The employer was concerned that M had not raised the fact that he could access the documents, and had not shown any contrition for his actions.
2. Coming to work smelling of alcohol
E was a healthcare assistant. A colleague reported that he had come to work smelling of alcohol. His line manager interviewed him and came to the same conclusion. E maintained that he had only had a few drinks the night before.
An investigation was commenced. No one had expressed any concern about E’s behaviour, or suggested that he had been acting drunk.
At a disciplinary hearing, the decision of the panel was that there was a reasonable belief that E attended work under the influence of alcohol, putting colleagues and patients at risk.
E was dismissed for gross misconduct.
Added to the reasons for dismissal was that E also refused to attend an occupational health appointment.
3. Bus driver’s breach of policy on mobile phone use while driving
Deciding the disciplinary penalty
R, a bus driver, was parked on a stand at the end of his route, with the engine switched off and no passengers aboard.
R took out his mobile phone to set the alarm, and fell asleep thinking the alarm was set. R woke up abruptly only to realise that he had missed his scheduled departure time because the alarm did not go off.
CCTV footage showed R starting his engine and moving off with his mobile phone in his hand. While the bus was moving, R took both hands off the steering wheel to put the phone into his pocket, then put one hand back on the wheel to secure the phone with his other hand.
The bus company decided to dismiss R, who was already on a final disciplinary warning.
The company took into account that it had clearly communicated its ban on mobile phone use, which included a complete prohibition on the “visible presence” of mobile phones in the cab area.
4. Long-serving employee spotted on mobile phone while driving into workplace
Factors that may mitigate against dismissal
Previous good conduct: An unblemished employment record may suggest that a warning is better.
Provocation: If an employee’s actions are the result of being provoked by a colleague or third party, such as a customer.
Inexperience: This could save a new employee, who does not know better, from dismissal.
Long service: Might count in an employee’s favour in a one-off incident.
Health or disability: Behaviour caused, for example, by a mental-health problem.
W had worked as an accountant for a bus company for 36 years, having joined at age 17.
A colleague reported witnessing W driving into the workplace car park while using his mobile phone. He was driving his own car at the time.
W explained that he had been under a great deal of stress because he had just moved to a new position following his former post being made redundant and he was in the process of moving house. He said that he had answered his mobile phone when he saw that the number displayed was from his removal company.
It was accepted that he was driving very slowly (less than 10mph and possibly less than 5mph) and within the speed limit.
W also argued that he was not sure whether or not the company’s policy banning mobile phone use while driving applies to private cars. W also pointed out that he had had a clean licence for his entire life. In mitigation, he pointed to his length of service and the impact that dismissal would have on him.
W was dismissed, despite agreeing to read all company policies and go on a driving course.
5. B&Q worker caught leaving store with item of stock in bag
Disciplinary proceedings: informing employee of outcome
D, a B&Q night-shift worker, was leaving the store through a newly-installed scanning machine. The machine went off and a security guard found a light-switch cover from the store in his bag.
D argued that someone else must have put the item in his bag when he left it unattended.
The employer’s investigation included interviewing everyone who was in the store at the time. They all denied placing the item in D’s bag.
The employer refused to allow a statement from another employee attesting that D had previously found a pack of batteries from the store in his bag to be entered as evidence. The investigation was limited to the night of the events in question and D was dismissed.
The employer heard more about the batteries incident during D’s appeal, which was rejected on the basis that:
- there were no witnesses to the batteries incident; and
- there was evidence from a store manager that no one was near the bag on the night in question.
6. Warehouse cleaner accused of consuming stolen 39p yoghurt in toilet
K’s job involved retrieving dropped items, such as cardboard and plastic wrapping, and clearing up spillages in a warehouse.
He was accused of taking a pot of “Thick and Creamy Golden Acre” yoghurt, valued at 39p, from one of the warehouse shelves.
He was said to have put it in the back of his trousers, either in the trouser pocket or in the waistband of the trousers.
Poor-quality CCTV footage captured him taking something that could not be identified and putting it behind his back, after which it disappeared. The CCTV camera had been installed a few days earlier, after a number of pots of yoghurt had gone missing.
The issue of the missing pot of yoghurt was discovered when a security guard was going through the CCTV footage. K denied the theft at an investigatory meeting, after which he was suspended and invited to a disciplinary hearing.
The CCTV footage was played a number of times at the disciplinary hearing. The chair concluded that K could have put the yoghurt into his back pocket or in the back of his trousers. Fourteen minutes later, he went to the toilet, where he spent seven minutes, which gave him “ample opportunity” to consume the product.
K was dismissed.
7. Portuguese care worker’s single use of word “fanny”
Action short of dismissal
No disciplinary action: Where offence too minor to warrant action.
Verbal warning: When dealing with first instance of minor misconduct.
First written warning: Where instances of minor misconduct occur after verbal warning is given, or on first instance of more serious misconduct.
Final written warning: For persistent acts of misconduct where employee already issued warnings or for serious act of misconduct falling short of gross misconduct.
Demotion: If employer believes that misconduct in question could justify dismissal, but would be prepared to continue to employ employee in a lesser capacity.
Other action aimed at behavioural improvement: Employer could instigate some other form of action such as counselling, coaching or training.
P worked in a care home for the elderly. She is Portuguese and has a “limited grasp” of the English language. She had an unblemished record.
At a safeguarding meeting, the niece of one of the residents made a complaint that she had heard P use the word “fanny” on one occasion the previous summer. The resident’s niece did not make use of the care home’s formal complaints procedure.
P admitted that she had used the word, but argued that she had not done so with any ill intent or in a way that was meant to cause offence.
The HR manager recommended that the matter proceed to a disciplinary hearing on the basis that the use of the word constituted “verbal and psychological abuse of a resident”.
A disciplinary hearing took place, and focused on the appropriateness of the use of the word “fanny”. P said that she had stopped using the word when she realised that its use was not appropriate.
The disciplinary hearing resulted in P’s dismissal for gross misconduct. Her appeal, which included the argument that English is not her first language and she had not used the word in a malicious context, was dismissed.
8. Nurse’s single lewd remark in stressful situation
B, a nurse with a clean record, finished her 12-hour shift, but volunteered to stay on to help restrain a naked patient who was having an epileptic fit.
The struggle culminated in B astride the patient’s naked genitals, at which point she made a remark to the effect that “it has been a few months since I’ve been in this position with a man underneath me”.
Although the incident had occurred in the A&E department, no member of the public was present to hear the remark and there was no evidence that the patient was sentient enough to have heard it.
Disciplinary action was taken against B and she was dismissed for:
- using an unacceptable and unprofessional method of restraint on the patient; and
- making a sexual remark about the patient.
9. Serial urinators caught on covert CCTV footage
Classic case: differences in treatment for same offence
In Harrow London Borough v Cunningham, the EAT held that an employee was fairly dismissed for misconduct even though another employee who was guilty of the same conduct was treated differently and given a final written warning.
The five claimants in this case all worked in the employer’s large factory, which had a problem with staff urinating that was taking place away from the toilets.
Covert CCTV footage was set up, with eight employees recorded urinating in outside areas on the employer’s premises.
Three were recorded urinating only once. However, the five claimants were found to have urinated outside on numerous occasions.
At a meeting for heads of department, the majority view was that the claimants’ actions amounted to gross misconduct, although at least one head of department felt that dismissal was too harsh a sanction.
Although there was clear evidence from the CCTV footage that all the employees had urinated away from the toilets, the employer chose to draw a line between those caught once and those recorded on more than one occasion.
The three employees who were filmed only once were given final written warnings.
The five other claimants were dismissed for gross misconduct.
10. Manager’s disclosure of details of job applicant to third party
A manager, S, interviewed a job applicant who had probably been to the same school as her sister, and said that she would mention their meeting to her sister.
However, S went further than this, and provided personal details about the job applicant to her mother, who in turn contacted the applicant to offer her a job.
The applicant rejected this and, after starting work at S’s employer, complained about S’s disclosures.
S was dismissed.
11. Manager’s single serious breach of safety protocol
Classic case: dismissal for single catastrophic mistake
In Taylor v Alidair Ltd, the Court of Appeal held that it was fair to dismiss an airline pilot whose negligent landing put the lives of passengers at risk.
U was a manager in a factory. A “depalletiser”, which is a machine that removes the wrapping that holds items on a pallet, broke down and U sent two operatives to investigate.
The depalletiser is a high-risk piece of machinery and it had just been brought back into operation a few weeks earlier, after a fatal accident.
Revised procedures had been introduced, including a system of master and slave keys for entering the machine and a requirement that employees entering it wear an orange, rather than green or yellow, tabard (to be seen more easily because many of the safety bars and screens were green or yellow).
The two operatives reported that U entered the machine without a key for a short period (less than a minute) and had been wearing a green tabard. U was suspended pending a disciplinary investigation.
The disciplinary panel decided to dismiss U for gross misconduct. It took into account U’s service record, but concluded that there had been a serious breach of safety rules.
The panel concluded that U had given no consideration to his own or others’ safety and had acted thoughtlessly. As a manager, he should have been setting an example.
12. Police community support officer’s inability to explain missing £15
A schoolboy lost his wallet and a member of the public handed it to T, a police community support officer, while she was on patrol.
T entered the incident into her pocketbook, recording that a “black leather wallet” was handed in. She did not record the contents of the wallet, but the schoolboy and member of the public later gave evidence that it contained £15.
A few days later, the wallet was discovered in T’s locker. T admitted that she should have entered the wallet into the lost property system, but said that she was “absolutely baffled” by the allegations that she had taken £15.
T was subsequently dismissed for gross misconduct.
Scroll down for all the answers
The answers: fair or unfair dismissal?
- Forwarding document on proposed pension changes found on shared drive: UNFAIR.
- Coming to work smelling of alcohol: UNFAIR.
- Bus driver’s breach of policy on mobile phone use while driving: FAIR.
- Long-serving employee spotted on mobile phone while driving into workplace: UNFAIR.
- B&Q worker caught leaving store with item of stock in bag: FAIR.
- Warehouse cleaner accused of consuming stolen 39p yogurt in toilet: FAIR.
- Portuguese care worker’s single use of word “fanny”: UNFAIR.
- Nurse’s single lewd remark in stressful situation: UNFAIR.
- Serial urinators caught on covert CCTV footage: FAIR.
- Manager’s disclosure of details of job applicant to third party: FAIR.
- Manager’s single serious breach of safety protocol: FAIR.
- Police community support officer’s inability to explain missing £15: FAIR.