In our current case,if the employer decides to go forward and dismiss Mr. Shaw on the basis ofgross misconduct, on the facts one possible option is for Mr. Shaw to bring aclaim for unfair dismissal under Employment Rights Act 19961 which states that “An employee has the right not to beunfairly dismissed by his employer.” Considering that our client hasbeen an employee of Technical Solutions Limited since 2000, with no gaps in his employment period satisfiesthe legal criteria under Employment Rights Act 1996 to bring a claim forunfair dismissal.
In order todetermine whether the employer has acted fairly in dismissing the employeeunder gross misconduct, the employer must prove that the dismissal was bothprocedurally and substantively fair.Gross misconduct is can be defined as an act which is so grave that it destroys the relationship between the twoparties.As per Smith LJ in Taylorv OCS Group Ltd2 “the employment tribunal’s task is to decidewhether, in all the circumstances of the case, the employer acted reasonably intreating the reason it has found as a sufficient reason to dismiss.The leadingcase which set out a three-part test to assess whether a dismissal formisconduct is fair or not is British Home Stores Ltd v Burchell3 , known as the Burchell test.
It states that thedismissal will be fair if at the time of the dismissal the employer:· believesthe employee to be guilty of misconduct;· hasreasonable grounds for believing that the employee was guilty of thatmisconduct; and· hascarried out an investigation whilst considering all the circumstances of thecase.The case of Burchell clearly differentiated the reasonablenessof the investigation and the matter of dismissal as being two separate issueswhen deciding if the employer took a reasonable response towards an employee’sconduct.The first factor to examine in an unfair dismissal case is whether theemployer had a fair reason to dismiss and whether the conclusion of managementwas a reasonable one as per the first limb of Burchell test.” The only reason stated by the employeris gross misconduct on the part of Mr.
Shaw. In the case of Sandwell & West BirminghamHospitals4 gross misconduct has been described as either”deliberate wrongdoing” or amount to “gross negligence”. The burden of proof lies with the employer toshow, after a reasonable investigation, that Mr. Shaw’s actions were so seriousto justify immediate dismissal.In the recent case of Adesoken v Sainsbury’sSupermarkets Ltd stated obiter dictumthat “a failure to act where there was no intentional decision to act contraryto or undermine the employer’s policies” does not constitutes such a grave actof misconduct as to justify summary dismissal.It was found in the case of NHS 24 v Pillar5that repeated actions of misconduct can amount to gross misconduct and constitutereason for dismissal.
Therefore, distinguishing this case from the facts of ourcase, where Mr. Shaw has never acted in a wrongful manner, and he proved to bea valuable employee, it can be argued that the reason to dismiss does not fallwithin the reasonable band of responses.When establishing a fair dismissal, s.98(4) calls forconsideration of all circumstances, including “the size and administrativeresources of the employer’s undertaking”Even if there is a justified reason to dismiss Mr. Shaw, thedismissal will still be unfair if the employer has not followed a correctprocess.In the Court of Appeal case of Whitbread v Hall 2001 IRLR275, the Tribunal found that due to lack of transparency to the claimant itrendered the dismissal was unfair.1 Section 98(4) of Employment Rights Act19962 Taylor v OCS Group Ltd 2006 ICR 1602CA3 British Home Stores Ltd v Burchell 1978IRLR 3794 Sandwell & West Birmingham Hospitals NHS Trust v WestwoodUKEAT/0032/095 NHS 24 v Pillar UKEAT/0005/16/JW