What constitutes a fair dismissal?

HSBC v Madden and Post Office v Foley, unreported, Court of Appeal, July 2000

The decision in Haddon (Personnel Today, 16 November 1999) caused consternation for employers because the EAT held that the long-established “range of reasonable responses” test was not appropriate in establishing the fairness of a dismissal. This recent decision may alleviate employers’ concerns.

Foley and Madden’s unfair dismissal claims failed because the tribunal held their dismissals for misconduct came within the range of a reasonable response. By the time of their appeals to the EAT, Haddon had been decided and the appeals were successful.

The Court of Appeal held that Haddon departed from established authority and was not to be followed. The appropriate test was that established in Burchell. Did the employer hold a reasonable suspicion amounting to belief that the employee was guilty of misconduct, was that suspicion based on reasonable grounds, did the employer carry out a reasonable investigation? Further, the “range of reasonable responses” approach meant the tribunal could not substitute its own views for that of a reasonable employer.

Bennett v Essex County Council, IDS Brief 666, EAT

Bennett, a teacher, was the only black employee out of a total of 29. Soon after her employment started she suffered racial abuse from five pupils. Although the school wrote letters for their parents these were never sent because it was thought the parents would not support measures such as detention.

The abuse stopped for a while but when it recommenced a year later Bennett complained again. This time letters were sent to the relevant parents. Bennett subsequently brought a race discrimination claim on the basis that although the school was not vicariously liable for the harassment it was directly liable because the pupils’ harassment was “sufficiently under the control” of the school that it could have prevented or reduced it.

The tribunal held that the school had not failed in its responsibilities. The claim was dismissed.

Bennett successfully appealed to the EAT. It held that the school failed to take all reasonable steps to prevent the harassment occurring.