30 October 2017

In the case of Ham v Governing Body of Beardwood Humanities College, Ms Ham was employed as Head of Science, and then Director of Science, from 1994 until her dismissal in May 2011. She was dismissed due to misconduct following an investigation.

A disciplinary hearing proceeded in the Claimant’s absence and found each of the charges established. The Claimant was dismissed with immediate effect. The Claimant appealed against that decision. Three charges were upheld in full and one only in part. The appeal against dismissal was refused. The original disciplinary panel had considered a variety of options but decided that dismissal was the only appropriate sanction. Neither redeployment nor a warning was considered appropriate. As the Respondent had no confidence that the Claimant would engage in any performance management procedure.

The appeal panel found that the Claimant had repeatedly failed to follow reasonable management requests to meet to discuss leadership and management issues. They found that “relationships had broken down significantly and there was a substantial loss of trust and confidence”. The outcome letter said that the Claimant “confirmed when presenting [your] case that [you] felt relationships had broken down”. The decision stated that “the panel first considered each allegation individually but felt that the allegations as a cumulative constituted gross misconduct”.

The Claimant argued that her dismissal was unfair and a 10 day Employment Tribunal hearing took place. The Employment Tribunal found that the primary reason for dismissal related to the Claimant's conduct and that the disciplinary panel had a genuine and reasonable belief that the Claimant was guilty of the misconduct alleged. However, the decision to dismiss was unfair because it was reached in the absence of the Claimant.

The Tribunal found that the appeal panel conducted a full re-hearing rather than a review of the original dismissal decision. The Tribunal noted that the allegations against the Claimant did do not tally with the examples of gross misconduct set out in the disciplinary policy and that they did not individually constitute gross misconduct. The Tribunal held that it was not right for a reasonable employer to 'gross up' individual allegations of misconduct to make them constitute gross misconduct cumulatively.

Considering these matters in relation to the Claimant, who had 17 years of service as a teacher without any adverse disciplinary findings against her and taking account of the fact that the appeal panel found that relationships had broken down significantly with a substantial loss of trust and confidence rather than relationships having broken down absolutely with a complete loss of trust and confidence, the Employment Tribunal decided that the decision to dismiss the claimant summarily for gross misconduct did not fall within the band of reasonable responses of the hypothetical reasonable employer and as such was unfair.

The Claimant was awarded a basic award of £9,400 and a maximum compensatory award of £68,400.

Upon the Respondent’s appeal, the Employment Appeal Tribunal found that the question was not whether the individual acts of misconduct found by the appeal panel individually, or indeed cumulatively, amounted to gross misconduct but whether the conduct in its totality amounted to a sufficient reason for dismissal. The matter was remitted back to the Tribunal. On this occasion, given the facts that had already been established, the Tribunal found that the decision to dismiss the Claimant was within the range of reasonable responses of a reasonable employer in all the circumstances, albeit “at the extreme end of that range”. The dismissal was therefore fair and the claim was dismissed.

The Claimant appealed arguing that the Employment Tribunal had erred in failing to consider whether dismissal was a reasonable sanction in a case where she had not previously received warnings about her conduct. In its decision the Tribunal had said that “if the Claimant had been managed properly and had any warnings been in place the Claimant would not have been dismissed for issues relating to her conduct before she would have come to the end of her employment by reason of redundancy when the school was scheduled to close”. (Emphasis added.)

The Employment Appeal Tribunal was not satisfied that there was any error in the decision. The Tribunal had considered the Respondent’s rejection of lesser sanctions such as warnings because it was considered that the Claimant would simply not co-operate and that trust and confidence had been lost. The only unfairness that had been identified was that the decision was made in the Claimant's absence but this was remedied on appeal. It was clear that all lesser sanctions were rejected by the Respondent as reasonable and the decision fell within the range of reasonable responses. The decision that the Claimant was fairly dismissed therefore stood.

This case is a useful reminder of the legal tests for unfair dismissal. Firstly, is there a potentially fair reason for dismissal? This could be conduct, capability, redundancy, breach of some legal rule or some other substantial reason. Once this has been established, the Tribunal needs to decide whether the employer fairly and reasonably in all the circumstances, taking account of the size and resources of the employer and equity and merits of the case. Acting fairly in all the circumstances is key with each case being different. Ultimately the employer needs to ensure that the decision to dismissal fell within the range of reasonable responses – i.e. could a reasonable employer in the particular circumstances have dismissed fairly?

As ever, if in doubt, speak to your specialist BTO employment lawyer.

To read the full judgment – see Here

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