In the case of Nejjary v Aramark Ltd the Employment Appeal
Tribunal considered what could be taken into account when
determining whether a misconduct dismissal was fair.
The case concerned a hospitality manager who was disciplined for
failing to a book a meeting, his "general lack of
enthusiasm" and other misdemeanours. In the employer's
view, each of these allegations amounted to gross misconduct on its
own and the employee was dismissed. On appeal, the appeal panel
discounted two of the allegations but upheld the failure to book a
meeting. The appeal panel felt that this amounted to gross
misconduct and upheld the decision to dismiss. The employee brought
an unfair dismissal claim.
The Employment Appeal Tribunal held that, when deciding whether
the decision to dismiss was within the "band of reasonable
responses which a reasonable employer would take", the
Tribunal should only consider the single, specific incident of
misconduct relied on by the employer in the appeal hearing and
should not consider aspects of the employee's record which the
employer did not take account of when deciding to dismiss (i.e. the
other two allegations which were dropped at the appeal stage). The
Tribunal felt that the single incident was not in itself sufficient
reason to dismiss and therefore the dismissal was unfair.
Comment: Employers should bear in mind
that if allegations are dropped (whether at the appeal stage or
before) the company may need to look again at whether dismissal can
be justified in light of the remaining offences.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures will usually increase the risk of a dismissal being found to be procedurally unfair and can result in increased compensation being payable to a dismissed employee.
BIS has published an updated indicative timetable of the planned key dates for the Enterprise and Regulatory Reform Act 2013 and the introduction of financial penalties for employers who breach workers rights will now not be in October 2013.
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