The Range of Reasonable Responses or a Stab in the Dark?
Dismissal
is always a sensitive subject; not only due to the inevitable implications for
an employee, but the complex and somewhat vague criteria that the employer must adhere to before terminating a contract.
Issues
relating to such an abstract test arose in the recent case of Rooney v Dundee
City Council. Rooney had breached instructions given to her by her
employers regarding cash handling; whilst this was done without intent or
malice. She was given a final written warning and decided to appeal, however
the appeal was never heard. Around a year later, Rooney made a similar mistake
and was dismissed, it was accepted by Dundee that the second breach would not
have led to dismissal had it not have been for the first instance which was
being appealed. This raised an important issue for the tribunal to consider: was
Rooney’s dismissal reasonable when reliant upon a previous matter?
The
tribunal ultimately sided with Dundee in saying that the dismissal should not be deemed
inappropriate based chiefly upon the existence of an unresolved issue. However,
it did go on to say that the issue in question still needs be considered, only
to be dismissed in its entirety if: issued in bad faith, without prima facie grounds for doing so or
should the tribunal consider it “manifestly appropriate”. It may be suggested
that the weight of the appeal itself would have influenced this particular
decision, as it was discussed whether the appeal would have been successful or
not. The tribunal was unsurprisingly vague in its decision and did not commit
to an answer either way, commenting that as the breach itself was admitted and
the decision would have been weighted on Rooney’s lack of intent and thus it
could have gone either way.
It
is submitted there is just too much leeway for judgment in cases like this,
paved by extremely wide terminology and leaves tribunal decisions wide open to
criticism. In this particular case, the judge agreed that the dismissal was
‘harsh’- many may struggle to see the difference between this and ‘unreasonable’.
A great deal of guesswork is also placed in the hands of the tribunal in that
it is forced to consider the merits of a theoretical appeal and partially base
a ‘just’ decision upon a non-existent outcome.
It
seems as if ultimately the notoriously nebulous area of law, which is
employment law, has muddied the waters yet again. It is well known that
employment law is hardly a science, and it is acknowledged that reasonable
assumptions are always made based on an incomplete collection of facts; a
detective will arrive at a scene and use limited evidence to piece together the
event. However such wide scope of subjectivity and possible small samples of
evidence are bracketed with more of a philosophy and it seems a bridge too far
for this commentator.
The
consequences emanating from this area of law are not just suffered by
employees; in a climate where employers are keen and in need of cutting down
their task force, previously accepted bad conduct may become an attractive
reason of dismissal, in this case an employer is faced with the hard task of
determining where the boundary lies between a reasonable and unreasonable
decision and must complete this task in the absence of an objective test or
sufficiently comprehensive guidelines.
The writer is a lawyer based in London, with a keen interest in Company, Employment and Immigration law. Previously, he has completed two Masters in Law at the University of Sussex and University College London. He is currently pursuing his third postgraduate legal qualification, undergoing training at BPP Law School in London on the Bar Professional Training Course and can be reached at: jay@londonlawtutor.com
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