Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant was subject to disciplinary proceedings in 2018 for behaving in an aggressive way towards his line manager. This led to a ‘supported improvement action plan’. However, in 2021 an employee supervised by the claimant complained that he was shouted at and threatened by the claimant. This led to a formal investigation in which the panel found that the conduct amounted to gross misconduct leading to dismissal. The letter of dismissal referred to the conduct of 2021 but also the supported improvement action plan in 2018. The claimant brought a claim for unfair dismissal.
Outcome:
At first instance, the Tribunal decided that there had been unfair dismissal. They found that the respondent had reasonable grounds for believing that misconduct had occurred and the investigation that took place was reasonable in the circumstances. However, they went on to consider within Section 98(4) of the Employment Rights Act 1996 whether the decision to dismiss was in the band of reasonable responses. In this, they accepted some submissions of the claimant, and that there had been deficiencies in the process. As a result, the case was permitted.
The EAT, on appeal, stated that when the Tribunal rightfully stated that the employer’s belief in the misconduct was genuinely held and there was a reasonable investigation it was not open to them to base its conclusion on a factual hypothesis that the real reason for the dismissal was something different than the established reason. Therefore, the only proper conclusion was that the dismissal was within the range of reasonable responses and was fair. The decision was overturned and the unfair dismissal case was dismissed.
Practical Guidance for Employers:
This case demonstrates how a conclusion that a decision to dismiss was for genuinely held reasons of dismissal will then stop the Tribunal from stating that it was not within the range of reasonable responses when there had been a reasonable investigation. The Tribunal had erred in going into the issue of whether it was within the band of reasonable responses when it had already really answered that by stating it was for a genuinely held reason of misconduct and there had been a reasonable investigation.
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