Automated Summary
Key Facts
Mr. S Bux was dismissed by EE Limited for gross misconduct related to misuse of employee discounts on the BT Shop. The employee admitted to using discount vouchers in breach of terms and conditions, accessing a colleague's BT Shop account, and asking colleagues to order for him after reaching his personal limit on certain products. The Tribunal found the dismissal was fair, noting the serious nature of the misconduct, the breakdown of trust, and that the employee's 23 years of service and clean disciplinary record did not outweigh the seriousness of the conduct. The Tribunal determined the employer followed a reasonable disciplinary process and the dismissal fell within the band of reasonable responses.
Issues
- The Tribunal needed to determine if the respondent acted reasonably in treating misconduct as sufficient reason for dismissal. This involved applying the test of fairness under section 98(4) of the Employment Rights Act 1996, which required assessing whether the dismissal fell within the band of reasonable responses. This included specific sub-issues about the respondent's belief, grounds, investigation, procedure, and whether dismissal was within the band of reasonable responses.
- The Tribunal needed to assess if misconduct could be considered a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996. This required determining if the misconduct met the criteria for a fair reason for dismissal as defined by law.
- The Tribunal needed to determine if the respondent clearly established that the reason for dismissal was misconduct, as claimed by the respondent. This was the first step in assessing the fairness of the dismissal under section 98 of the Employment Rights Act 1996.
Holdings
The Employment Tribunal found that EE Limited's dismissal of Mr. Bux for gross misconduct was fair, dismissing his claim of unfair dismissal. The Tribunal determined that the respondent had shown a potentially fair reason for dismissal (conduct), that the dismissal was within the band of reasonable responses, and that the respondent's belief in misconduct was genuine, held on reasonable grounds, and supported by a reasonable investigation. The Tribunal carefully considered the claimant's mitigation factors including his 23 years of service and clean disciplinary record, but found these were insufficient to prevent the dismissal given the seriousness of the misconduct.
Legal Principles
- Appeal is part of dismissal process, not separate proceeding.
- Reasonable band of responses test determines if dismissal was within reasonable employer's options.
- Burchell test requires genuine belief, reasonable grounds, and reasonable investigation for dismissal.
- ACAS Code of Practice must be considered by tribunals to ensure fair disciplinary procedures.
Precedent Name
- Iceland Frozen Foods Ltd v Jones
- British Home Stores v Burchell
- Britobabapulle v Ealing Hospital NHS Trust
- Burdett v Aviva Employment Services
- Sainsbury's Supermarkets Limited v Hitt
Cited Statute
- Trade Union and Labour Relations (Consolidation) Act 1992
- Employment Rights Act 1996
Judge Name
Employment Judge McCarthy
Passage Text
- Applying Burchell and Sainsbury Supermarkets Limited v Hitt [2003] IRLR 23, and taking into account the size and administrative resources of the respondent (i.e. that it is large employer with a dedicated Human resources function and comprehensive policies, I reached the following conclusions: ... I find that this belief was based on reasonable grounds.
- Ms Page reminded me that as part of my assessment of whether the respondent's response fell within the band of reasonable responses the Tribunal must only consider the reasonableness of the employer's conduct, not the level of any injustice to the employee as confirmed in Chubb Fire Security Ltd v Harper [1983] IRLR 311.
- I find that the mitigation the claimant presented, including but not limited to, his length of service and clean record and personal circumstances were carefully considered by Mr Smithson and Ms Rawlinson before making their decisions to dismiss the claimant and uphold the decision to dismiss. I find that notwithstanding the claimant's mitigation, the respondent's decision to summarily dismiss the claimant was still within the band of reasonable responses.