FACTS
In this case the Claimant was a caretaker of the Respondent school. The Claimant had deliberately closed the premises early on the Friday of a Bank Holiday weekend. A postgraduate student was locked into the premises and she had to use the alarm and the emergency services were called. After a disciplinary hearing and appeal the employee was dismissed.
DETERMINATION
The Employment Appeals Tribunal made a number of observations in its findings which are of interest:
1. It stated that it is well settled law that an employer cannot be compelled to deal with a solicitor acting for an employee where there is a recognised trade union and an established set of agreements in place (as per the Meskell –v- CIE case). In fact, since the relatively recent Roscrea Prison case, it has become difficult to argue that an employee is entitled to legal representation in a disciplinary hearing generally.
2. The Tribunal considered that as the dismissal had already taken place at the time of the appeal hearing, the later appeal could not make the earlier dismissal either fair or unfair. This has been a theme of unfair dismissal cases in the past, although rarely stated as clearly.
3. The Tribunal considered that having an independent chairman of the appeal hearing meant that the independent chairman was not the agent of the Respondent, and the Respondent would not be answerable for his actions or decisions. The Tribunal implicitly seems to say that it requires that an appeal hearing to an independent chairman, is not in fact a valid appeal.
4. The Tribunal considered that closing the premises early, thereby allowing a person to be locked in was a dereliction of duty. However it questioned whether or not the appropriate penalty for such dereliction of duty was dismissal.
LEGAL REVIEW
It has been considered good law up to now to state that the Tribunal cannot substitute its own view of what is an appropriate decision, and that as long as the decision arrived at by the decision maker was within the range of reasonable responses that the decision maker could have made, that the Tribunal should not substitute its own view. The Tribunal felt that this was an “old” position and that Employment Appeals Tribunal case law has developed sufficiently that the doctrine of proportionality replaces this concept.
The Tribunal indicated that “gross misconduct” is something very, very serious. It pointed out again that gross misconduct, is misconduct justifying summary dismissal, whereas misconduct simplicitor may justify dismissal with notice.
The Tribunal found that the Claimant did not intend to lock a person inside the building, therefore whilst this was evidence of “conduct” it was not evidence of misconduct. On that basis the Tribunal was of the view that dismissal was disproportionate to the Claimant’s conduct, and that the dismissal was therefore unfair.
The Tribunal found that the Claimant had contributed to his own dismissal and that there was fault on both sides. The Tribunal therefore decided to award reengagement, rather than reinstatement. The difference between reengagement and reinstatement is that with reengagement the employee is effectively reemployed. In order to protect against further dismissal, or problems with pension, the Tribunal usually awards that any reengagement is with continuity of service for all purposes excluding wages (but including pension).
In reinstatement cases the employee is treated as if he had never been dismissed and is entitled to all back wages etc.
CONCLUSION
This case sets out the law in a number of areas, and is a very useful precedent. Full case decision:
http://bit.ly/nIOJlD
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