A recent Employment Tribunal (ET) decision has once again illustrated the appropriate test for considering whether a conduct dismissal is reasonable. The background to the case saw the employee, a swimming instructor, dismissed by his employer for gross misconduct following a comment he made whilst delivering swimming lessons to a local primary school class. Remarking to one of the female pupils that it “looks like you work out”, the employee was suspended on full pay and dismissed for gross misconduct due to safeguarding concerns following an investigation.
In assessing the employee’s claim for unfair dismissal, the ET applied the decision from British Home Stores v Burchell 1980. Known as the “Burchell Test”, this required the ET to consider first whether the employer genuinely believed that the employee was guilty of misconduct, whether this was based on reasonable grounds, whether the employer carried out a fair investigation and whether the procedure followed by the employer was fair. Following this, the ET must then decide whether the decision to dismiss falls within the range of reasonable responses available to the employer.
In this case, there was little debate as to whether the employer held a genuine belief based on reasonable grounds as the employee had accepted that he made the comments and that the comments were inappropriate. Likewise, the ET was satisfied that there was a fair procedure carried out and a reasonable investigation. In this regard, the employer suspended the employee at the outset of the investigation, carried this investigation out, held a disciplinary hearing and allowed the employee to exercise a right of appeal.
Accordingly, the main issue for the ET to decide upon was whether the decision to dismiss fell within the range of reasonable responses available to the employer. The ET judge in this instance did recognise that a decision to dismiss in these circumstances may be seen as “somewhat harsh”. It came off the back off a first offence, one made up of only one remark and one which the employee accepted was inappropriate.
However, the ET placed the position of the organisation at the forefront of its decision placing great weight on the nature of their business as one providing swimming lessons to school children. The ET noted that the employer had received a complaint directly from the school as well as an enquiry as to whether the employee would be taking the next class from the pupil’s parents who were apprehensive about allowing her to attend. Furthermore, the ET found that swimming teachers are in a position of trust and that the very nature of the comment suggested that the employee had been observing the pupil’s physical appearance.
The ET also looked into the employer’s disciplinary policy which stated that if “there is a major breach of duty or conduct that brings or might bring the organisation’s name into disrepute, dismissal will normally result”. Factoring in the considerations above, the ET considered that these actions could clearly bring the organisation into disrepute and dismissed the claim for unfair dismissal accordingly.
This case serves as another reminder that the tribunal can exercise discretion in what they factor into the Burchell test. Although the EAT judge in this instance did recognise that a decision to dismiss in these circumstances may be seen as “somewhat harsh”, the circumstances dictated that it was still a reasonable response.
Nevertheless, employers should perhaps see this decision as a warning against dismissing as opposed to clarification that dismissal should be the first response. It was clear that the safeguarding issue was a major reason for dismissal, likewise, the employer had a clear policy which they followed. In similar circumstances where we see two adult coworkers and no relevant policy the question of whether dismissal was a reasonable response may not be so clear cut. Accordingly, employers should seek legal advice on whether dismissal falls within the range of reasonable responses available to them. The last thing you want is to be drowning in litigation…