Aggregating minor acts of misconduct to justify a fair dismissal
Can an employer lump together a series of minor acts of misconduct and use that as a reason to dismiss an employee without prior warning? And if they do, is that dismissal fair?
That is the question that the case of Ham v The Governing Body of Beardwood Humanities College sought to answer.
Ms Ham worked for the college from 1994 until 2011, by which point she was the Director of Science. In May 2011, following several incidents, which included, to quote the original Tribunal report:
“Repeated failure to follow reasonable management requests to meet to discuss leadership and management issues.
Failure to follow and comply with health and safety regulations which resulted in a safeguarding incident.
Subsequent refusal to meet within a reasonable timeframe to ensure that appropriate health and safety and safeguarding arrangements are adhered to.
Communicating in an unreasonable and intimidating way on a number of occasions (verbally and written) including inappropriate emails.
Unreasonable and uncooperative behaviour with work colleagues causing a breakdown in working relationships”
a disciplinary hearing took place in Ms Ham’s absence. Despite none of the incidents being counted by the College as gross misconduct, Ms Ham was nevertheless summarily dismissed. Using the College’s internal system, she appealed against the dismissal but she was unsuccessful. She then took her employer to an Employment Tribunal.
The Tribunal Decisions
The Employment Tribunal decided that the dismissal was unfair because of the way that the individual acts had been lumped together in order to justify gross misconduct. The Tribunal also felt that as the school was due to close at the end of August 2012, Ham would be made redundant anyway, thus making the decision to dismiss unfair. The College took its case to the Employment Appeal Tribunal, which disagreed with the original Tribunal decision. It said that the wrong approach had been taken and rather than concentrate on whether the individual acts of misconduct added up to gross misconduct, the Tribunal should have considered whether the conduct as a whole gave a good enough reason for the dismissal. It was also felt that the Employment Tribunal’s inclusion of the imminent closure of the school as a factor in the unfairness of the dismissal was irrelevant.
The case was sent back to the original Tribunal for them to consider again. The question that they had to look at was not whether the series of acts of misconduct amounted to ‘gross misconduct’ but whether the decision to dismiss was reasonable under Section 98(4) of the Employment Rights Act 1996, given the “totality” of conduct.
Taking into account the band of reasonable responses test, the Tribunal decided that the decision to dismiss fell within it, although it was said that it was at the extreme end of the spectrum.
Ms Ham was, unsurprisingly, not happy with the decisions of the Tribunals and appealed the latest one. Her argument was that the Tribunal had failed to consider whether, in the absence of gross misconduct, a dismissal was reasonable if there had been no disciplinary warnings beforehand. She contended that, as the original Employment Tribunal had said, had she been made aware of the likely consequences of her acts by the use of warnings, she would have altered her behaviour and avoided dismissal.
However, her appeal was dismissed by the Employment Appeal Tribunal which said that both the College and the Employment Tribunal had considered alternatives to dismissal. The college had looked into warnings but
“they were not considered appropriate as the employer had no trust and confidence that Ham would engage in a performance management procedure.”
The college had therefore reached the conclusion that a dismissal was appropriate in the circumstances.
What is the ‘band of reasonable responses’?
When a claim for unfair dismissal comes before a Tribunal, the first thing it looks at is whether the reason for which the claimant was dismissed could be potentially fair. Having decided that, the tribunal then looks at whether the employer’s decision falls within a range of responses that a hypothetical ‘reasonable’ employer (of the same type, in the same sector) would have taken in the same circumstances. If the action of the employer falls within that band of responses, then it is a fair dismissal, regardless of whether the Tribunal itself would not have taken such a decision. Indeed, during the process, the Tribunal should not impose its own view of the sanction or measure that should have been imposed. Many Tribunal decisions have been overturned on appeal precisely because this has happened.
The “extreme end” of the band of reasonable responses
As has been shown in this case, even when there is no incident of gross misconduct, a dismissal without prior formal warnings can be counted as fair. However, there needs to have been a series of acts of misconduct.
In this case, as mentioned above, the Tribunal found that matters had reached such a point that the trust and confidence between employer and employee had broken down. The employer had reached the view that even if a warning had been issued, it would not have influenced the behaviour of the employee.
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