A recent decision of the Employment Appeal Tribunal (EAT) has confirmed that an employment tribunal, when assessing the fairness of a dismissal, cannot take into account reasons other than those that were in the mind of the employer at the time. Professional Support Lawyer Elizabeth Stevens and Trainee Solicitor Laura Tanguay report.
The claimant in this case, Mr Nejjary, worked as a hospitality manager for Aramark Ltd providing hospitality services for Goldman Sachs. Mr Nejjary was accused of failing to check a booking sheet for an event, leading to a complaint from the client about the service provided at the event.
In both the disciplinary and appeal hearings, Aramark considered this booking error and other recent complaints in isolation. Despite there being previous recorded warnings on his file for similar incidents, these incidents were not relied upon in the decision to dismiss Mr Nejjary for gross misconduct.
Aramark concluded that the single booking failure alone justified dismissal. Consequently, Mr Nejjary brought a claim for unfair dismissal on the basis that dismissal was not within the range of reasonable responses for a single booking failure.
The employment tribunal found that summary dismissal would normally be outside the range of reasonable responses for this incident, but that Mr Nejjary’s previous written and verbal warnings for similar failings meant that dismissal was within the range of reasonable responses. The claimant’s claim for unfair dismissal was therefore dismissed. Mr Nejjary appealed this decision.
On appeal, the EAT held that the relevant ‘reason’ for dismissal is the employer’s actual reason for dismissal, and not any other reasons for which the employee might otherwise have been dismissed. Aramark had disregarded the previous disciplinary matters in their reasons for dismissal, and it was not permissible for the tribunal to substitute a reason or supply an additional reason which did not form part of Aramark’s considerations at the time.
Mr Nejjary’s appeal was therefore allowed by the EAT and his claim for unfair dismissal succeeded.
Comment
The legal test to consider in these circumstances is one of ‘reasonableness’ – i.e. whether it was reasonable for the employer to dismiss the employee in the circumstances. The ‘circumstances’ are limited to the specific issues that had been in the employer’s mind at the time when making its decision, and do not include factors that the employer might have taken into consideration, but did not. In this case, the employer should have made reference to the previous warnings in reaching its decision to dismiss.
A copy of the EAT judgment is available here.
