Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Chand and EE, in which the Employment Appeal Tribunal was asked to consider whether, in unfair dismissal claims, what the decision maker actually decided must be analysed to determine the principal reason for the dismissal. C, a senior customer advisor for a mobile phone company, was dismissed for gross misconduct after 16 years' unblemished service. The employer had relied on four separate incidents in which C had been non-compliant with the employer's policies around performing credit checks and checking customer ID. On each occasion, these failures had resulted in a monthly mobile phone contract being entered into that was later unpaid. Whereas, had the employer's procedures been followed, the contract should have been declined. In mitigation, C pointed to stress she was under at the relevant time due to both her parents being seriously ill. The employer dismissed that mitigation and concluded that each incident was fraudulent. An employment tribunal dismissed C's unfair dismissal claim, finding that while the employer did not have a reasonable basis to conclude that any of the four matters relied on amounted to fraud on C's part, C's dismissal was fair because one of the four incidents had been a serious departure from the employer's policy. Both parties appealed. The Employment Appeal Tribunal firstly dismissed the employer's appeal. in which it argued that the tribunal had erred in concluding that the employer did not have reasonable grounds to view any of the incidents as fraudulent, and therefore as instances of gross misconduct. The tribunal's conclusion had been reached following a full analysis of the evidence that was before the employer at the time when the decision to dismiss was taken. The Employment Appeal Tribunal went on to consider C's point of appeal that the tribunal had held that the employer's belief at the time of her dismissal amounted to a composite reason for her dismissal. And, as important elements of that belief had not been held on reasonable grounds, the only conclusion properly opened to the tribunal was that C's dismissal was unfair. The Employment Appeal Tribunal upheld C's appeal, and held that the tribunal had erred in failing to recognise that in a case of dismissal for conduct, it is necessary to consider the subjective question of what, in fact, was the employer's principal reason for the dismissal, that involves an examination of what the decision-maker actually decided. not what they could hypothetically have decided. Here, the tribunal had not made any finding that the fourth incident was the principal reason for C's dismissal, and it had held that a key element of the employer's actual reason, a belief that C was guilty of fraud, was not held on reasonable grounds. Therefore, the only conclusion properly opened to the tribunal was that C's dismissal was unfair. The Employment Appeal Tribunal upheld C's appeal. and substituted a decision that she was unfairly dismissed. Look out for further episodes in this series to stay up to date on all things HR and employment law related.