Fairness: with knobs on
There is a really interesting report this week of a decision by the Employment Appeal Tribunal that looks at a number of current issues about fairness both in general terms and procedurally, the approach of the ETs in making decisions about what is fair and the relevance of the right to be accompanied at a disciplinary/grievance hearing. Some useful guidance and all worth thinking about. The case is Talon Engineering v Smith.
Mrs Smith was dismissed because of an email exchange in which she described an “unnamed” colleague as a “knob” and a “knobhead”.
General unfairness
The Employment Tribunal took the view that the derogatory reference to a colleague was essentially “venting to a close friend”. The colleague was unnamed. The course of email correspondence between the Claimant and her friend showed that the two of them shared “lots of personal information in very chatty and informal emails”.
The Judge said “it is not clever and it is not funny… but the Tribunal was entitled to conclude that it did not amount to serious gross misconduct that puts the business reputation of the Respondent at risk”.
I think that is a pretty sensible conclusion given the context.
Substitution mindset
The Respondents argued on appeal that the Tribunal had failed to judge reasonableness by the standard of the reasonable employer. Instead, they said, the Tribunal had substituted its own view for the views of the employer. Tribunals are not allowed to do that.
The Tribunal had thought that dismissal was a “gross overreaction” – bearing in mind, not least, that the Claimant had 21 years’ service with an unblemished record.
The Judge quoted an earlier authority (Kefil) to this effect: “substitution mindset is all too easy to allege… employers who do not like the result which a Tribunal has reached… seek to argue that the very fact of the result… must indicate a substitution”.
It is refreshing to see that here EAT was clear: “the Tribunal has been punctilious in assessing matters by reference to a reasonable employer and not their own views”.
This is a reminder to employers that not every decision on fairness that goes against them is going to be appealable to EAT on the basis of “substitution mindset” – a useful and indeed refreshing reminder.
The right to be accompanied
The Respondent had adjourned the disciplinary proceedings on one occasion because the Claimant was ill.
The Claimant sought a further adjournment, for two weeks, because her trade union official was unable to attend on the new date.
The Respondents declined the second request. The ET took the view that the Respondents had acted in a manner that was “entitled and hasty”.
It seems that the mere fact of this failure to adjourn would have rendered the dismissal unfair in and of itself.
That is also a useful decision for Claimants and Trade Unions – it gives real teeth to the right to be accompanied. I think one has to have regard to all surrounding circumstances and I think that here the fact that the adjournment was sought for a relatively short period (a fortnight) was relevant. The Judge in the EAT made it clear: sometimes the employer simply cannot be expected to wait any longer. Nevertheless, some useful guidance on adjournments in this decision.
There is also something in the case about “Polkey” reductions but I have probably said enough for now.
An interesting, robust and straightforward decision that tackles quite a few of the practical issues that we see in our employment team on behalf of Claimants on a day to day basis.
Paul Scholey – Senior Partner
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