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To sack or not to sack?

22nd August 2013

There comes a time when every employer wonders whether it’s time for Mr/Mrs/Ms X to move on. It may be that the employee is just not up to the required standard, has taken too much or too frequent absence or is carrying out a role that is no longer required. It could be that there is “some other substantial reason” that makes it reasonable to part company or that the employee has committed misconduct of some kind.

These are all potentially fair reasons to dismiss an employee, but that doesn’t mean that it will be fair to do so. In a performance case or “ordinary” misconduct case, you will have needed to have given the appropriate formal warnings. In an incapability due to ill-health scenario, you will have obtained a medical report. In a redundancy situation, you will have carried out a fair and reasonable selection process. If you follow a fair procedure (including investigation, consultation and other formal meetings, as appropriate), you’re half way there.

However, there’s always the hurdle of ensuring that the act of dismissal itself is reasonable. If an employee can no longer carry out their role (whether due to incapability or redundancy), then there is an obligation to consider alternatives to dismissal including shorter hours or other reasonable adjustments (even if the employee is not “disabled” under the Equality Act).

But what of gross misconduct? Surely it’s pretty clear cut – if the employee is found to have committed gross misconduct, doesn’t it automatically follow that it will be fair and reasonable to dismiss them? In the recent case of In Brito-Babapulle v Ealing Hospital NHS Trust, the EAT considered whether a tribunal had erred in holding that a dismissal inevitably falls within the range of reasonable responses in a gross misconduct case.

In this case, the employee claimed sick pay while working elsewhere. The EAT indicated that an employer was entitled to regard this very seriously and it could well lead to dismissal. However, an employer may not jump straight from a finding of gross misconduct to dismissal without considering mitigation such as long service, the consequences of dismissal and a previously unblemished disciplinary record. The EAT allowed an appeal against a finding of unfair dismissal and asked the tribunal to reconsider this issue.

Top tip from this case is a reminder to always consider the particular circumstances of every individual when deciding on the appropriate sanction.

And finally, Mundays would like to welcome … me! I’ve just started this week as a Partner and Head of Employment. I look forward to working with my new colleagues in our Employment and other teams and look forward to meeting you all in due course.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2013.

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