Tribunal provides reminder to employers on how unfair dismissal claims are assessed

No two words in the English language strike fear into HR workers everywhere more than “unfair dismissal”. The question of whether a particular reason is sufficient to constitute a dismissal is alone enough to induce headaches, even before considering the steps required to ensure a fair process takes place.

That’s why employment tribunal rulings such as the recent one of Jones v Vale Curtains and Blinds are so useful in clearly outlining the legal test for unfair dismissal and providing guidance on how employers can lessen the risk of such claims.

The facts

Ms Jones was dismissed by Vale Curtains and Blinds after she received an email from a client who had previously been rude to her. Intending to forward the email to a colleague, she used an expletive to refer to the client in the forwarding email, however, it later arose that she’d accidentally clicked ‘reply’ to the client’s email instead of forwarding it on.

When the matter made its way to an employment tribunal, Employment Judge Reindorf KC ultimately ruled that Ms Jones had been unfairly dismissed. The judge helpfully broke down the test for unfair dismissal, as it applied to the facts of the case, as follows:

The test for unfair dismissal
No two words in the English language strike fear into HR workers everywhere more than “unfair dismissal”. The question of whether a particular reason is sufficient to constitute a dismissal is alone enough to induce headaches, even before considering the steps required to ensure a fair process takes place.

That’s why employment tribunal rulings such as the recent one of Jones v Vale Curtains and Blinds are so useful in clearly outlining the legal test for unfair dismissal and providing guidance on how employers can lessen the risk of such claims.

The facts

Ms Jones was dismissed by Vale Curtains and Blinds after she received an email from a client who had previously been rude to her. Intending to forward the email to a colleague, she used an expletive to refer to the client in the forwarding email, however, it later arose that she’d accidentally clicked ‘reply’ to the client’s email instead of forwarding it on.

When the matter made its way to an employment tribunal, Employment Judge Reindorf KC ultimately ruled that Ms Jones had been unfairly dismissed. The judge helpfully broke down the test for unfair dismissal, as it applied to the facts of the case, as follows:

The test for unfair dismissal

1. For a dismissal to be fair, the employer has to show that the sole or principal reason for the dismissal was one of the “potentially fair reasons” listed in s.98(1) of the Employment Rights Act 1996. Judge Reindorf considered that the potentially fair reason of ‘misconduct’ did not apply in the case. The company had initially been sympathetic to the claimant, acknowledging that it was a mistake, and it was only once the client threatened a poor Trustpilot review that a disciplinary process commenced. There was also evidence to suggest that the disciplinary process was a sham, as the Managing Director had informed the HR Manager that they needed to “get rid of” the claimant prior to it commencing. The judge found that the actual reason, i.e: preventing reputational damage to the company by dismissing the offending employee, could fall into the category of ‘some other substantial reason’, which qualified it as a ‘potentially fair reason’.
2. Next, an employer has to show that their decision to dismiss the employee falls within the ‘range of reasonable responses’ that would be acceptable in those circumstances. Here, the judge highlighted a number of instances in which the employer acted unfairly to conclude that the overall decision was not a reasonable one. By not taking witness statements or consulting their disciplinary policy, the company had circumvented a proper investigation, and by not allowing the employee’s appeal, a proper process for dismissal was not followed.
3. If it’s established that a dismissal was unfair, a judge then needs to consider whether the claimant would have been dismissed even if a fair procedure had been followed. If so, a claimant’s award is subject to a percentage ‘Polkey’ reduction, based on the likelihood that the claimant would have been dismissed in any case. The judge decided that the incident was a genuine mistake, for which the claimant was genuinely apologetic. Accordingly, the conduct may have been deserving of a disciplinary investigation and possibly a lesser disciplinary sanction, but dismissal was not a proportionate response. Therefore, no ‘Polkey’ reduction was ordered.
4. After this, the judge must consider whether the employer failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Such failure can result in an uplift of up to 25% on any compensatory award. In this case, as the judge had determined that the reason for the dismissal was ‘some other substantial reason’ and was not due to the employee’s misconduct, the Code of Practice relating to disciplinary matters did not apply.
5. Similarly, a judge has to determine whether a dismissal could to any extent be attributed to a ‘contributory fault’ by the claimant. Although the judge had explained that the act of mistakenly sending an offensive email was not worthy of a dismissal, he conceded that it was still careless and improper. However, as the language used was not uncommon for the workplace, and sending the email to that recipient was a genuine error, the judge deemed that the claimant only contributed 10% of the way to her eventual dismissal, reducing her award by that same amount.
6. Finally, the financial loss that resulted from the dismissal needs to be calculated. Here, a judge has to consider whether a claimant has done everything they could to ‘mitigate their losses’, i.e., by finding a similar job to restore their income. The judge found that the time it took the claimant to find another job with the same salary – just under five months – was suitable in the circumstances, and she was therefore entitled to loss of pay for that entire period. Although she had subsequently resigned from this replacement position, the judge did not include any loss of earnings during this subsequent period of unemployment, as it could not be attributed to the respondent’s actions.

Cases such as this can be used to guide employers through what tribunals look for when assessing such claims and may hopefully help in preventing future unfair dismissals.