What is the correct test of reasonableness?

This week’s case round up

Wilson v Ethicon, IDS Brief 655, EAT

• Wilson was suspended for gross misconduct after failing to carry out a
required testing procedure on the assembly line where she worked. Ethi-con
obtained statements from two witnesses and Wilson was dismissed. Her internal
appeal was unsuccessful, as was her unfair dismissal claim. The tribunal
applied the Burchell test and concluded Ethicon’s investigation was reasonable
and the dismissal fell with-in the band of reasonable responses.

Wilson appealed. The EAT held that the tribunal had merely satisfied itself
that Ethicon’s investigation was adequate but had failed to consider the
reasonableness overall of the decision to dismiss as required by the case of
Haddon. Taking into account Wilson’s long-standing, unblemished work record,
Ethicon and the tribunal should have considered whether there were alternatives
to dismissal. The EAT remitted the case to a differently constituted tribunal
for a re-hearing.

Victimisation and references

Chief Constable of West Yorkshire v Khan, unreported, February 2000, Court
of Appeal

• Khan, a police sergeant, brought a race discrimination claim after failing
to secure promotion. But before this was heard he applied for promotion with
another police force. In accordance with normal procedures, that force
requested a reference and details of Khan’s appraisals. The chief constable
refused to comply with the request in case this prejudiced the tribunal claim.
Khan was not appointed to the new post.

Khan amended his tribunal claim to include victimisation and this was upheld
even though his race discrimination claim was dismissed. The EAT upheld the
tribunal’s findings and the chief constable appealed unsuccessfully to the
Court of Appeal.

The test to be applied was the objective "but for" test and the
intention to commit less favourable treatment, irrespective of a conscious
motive to discriminate. The court held that but for the tribunal proceedings a
reference would have been provided and Khan had been treated less favourably by
commencing those proceedings. The correct approach was to compare Khan’s
treatment with that of an employee requesting a reference rather than to
someone who had brought proceedings against their employer.

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