Automated Summary
Key Facts
The Employment Tribunal in Glasgow (Case No. 4100215/2022) ruled that South Lanarkshire Council unfairly dismissed Yvonne Welsh, a residential care worker employed since 2005, for gross misconduct following allegations of assault on a service user in November 2020. The tribunal found the dismissal was unfair because the respondents failed to establish reasonable grounds for treating the claimant's failure to notify the SSSC of her criminal charge as misconduct (ground 3), the claimant's receipt of a Temporary Suspension Order from the SSSC (ground 4) as misconduct (which the tribunal determined was not misconduct as it was imposed by an external body), and breaches of the Resource Code and Code of Conduct (grounds 5 and 6) as separate and equal charges (which were duplications of grounds 3 and 4). The tribunal also found the dismissal fell outside the band of reasonable responses. Additionally, the claimant's breach of contract claim succeeded as her failure to report the criminal charge did not amount to conduct that undermined trust and confidence to the extent that the respondents could no longer be expected to be bound by the contract.
Issues
- The tribunal determined the respondents did not establish a valid reason for dismissal under Section 98(1) of the Employment Rights Act 1996. While they established a reason (failure to report to SSSC), they lacked reasonable grounds to conclude this constituted gross misconduct.
- The tribunal found the dismissal for gross misconduct was not justified. The claimant failed to report her criminal charge to the SSSC due to distress and belief that management would report it, which was reasonable given her previous experience. This conduct did not amount to gross misconduct.
- Applying the objective test of a reasonable employer, the tribunal found the dismissal decision fell outside the band of reasonable responses. Factors considered included the claimant's distress, 16 years of service, and the fact her failure to report was due to reasonable belief management would do it.
- The tribunal concluded the respondents did not establish a repudiatory breach of contract. The claimant's failure to report to the SSSC did not so undermine trust and confidence in the employment relationship that the respondents could no longer be expected to be bound by it.
Holdings
The Employment Tribunal ruled that the claimant's dismissal was unfair under Section 94 of the Employment Rights Act 1996 and that the respondents breached the contract of employment. The tribunal found the dismissal was not based on reasonable grounds, as the respondents did not have reasonable grounds to consider the claimant's failure to report the criminal charge to the SSSC as gross misconduct. The tribunal ordered a remedy hearing to determine compensation.
Legal Principles
- The tribunal established that the burden of proof rests on the employer to establish the reason for dismissal. Once this is established, the burden becomes neutral when considering the reasonableness of the dismissal. This principle was crucial in determining that the respondents failed to properly establish the reason for dismissal due to unreasonable grounds for some of the charges.
- The tribunal applied the 'band of reasonable responses' test, derived from British Home Stores v Burchill, to determine whether the employer's decision to dismiss fell within a reasonable range of responses. This test requires the tribunal to consider whether the employer's actions were reasonable from the perspective of a hypothetical reasonable employer, rather than substituting their own judgment. The tribunal found that the dismissal fell outside this band due to unreasonable reliance on certain charges.
Precedent Name
- Graham v Secretary of State for Works and Pensions
- Tayeh v Barchester Healthcare Limited
- British Home Stores v Burchill
- Broecker v Metroline Travel Ltd
- Chandhock v Tirkey
Cited Statute
Employment Rights Act 1996
Judge Name
L Doherty
Passage Text
- Applying the objective standard of a reasonable employer the decision for the cumulative reasons relied upon by the respondents fell out with the band of reasonable responses open to the employer, rendering the dismissal unfair under section 98(4) of the ERA.
- The Tribunal also considered charges 5 and 6. It appeared to be accepted by the respondents that charges 5 and 6, which with the alleged breaches of the Resource Code and the Code, where in effect duplications or the offences alleged in charges 3 and 4.
- The judgment of the Employment Tribunal is that: (1) the claim of unfair dismissal under Section 94 of the Employment Rights act 1996 (the ERA) is well founded; (2) the claim of breach of contract is well founded; and a hearing to determine Remedy will now be fixed.