Unfair Dismissal: Snakes and Ladders?

Philip Harmer, partner at Stormcatcher Business Lawyers, looks at unfair dismissal.

Many, if not most, employers and employees see Employment Law as a game of snakes and ladders, where the seemingly random outcomes appear to be a matter of luck rather than judgment. For some, the latest unfair dismissal decisions bear witness to what might be described as a “roll of the dice legal system.”

Disciplinary investigations and hearings are much maligned, long since viewed by employees as a kangaroo court, presided over by avid fans of “Silk” and “Judge John Deed,” who veil their proceedings in court room vernacular. They are not legal proceedings, nor are they the custodians of the scales of justice; their processes and decisions are ultimately subject to judicial scrutiny and administration of the law.

In this regard, the case of Shrestha v Genesis Housing Association Ltd offers some guidance into the standards of enquiry and proof that the employer must satisfy, at least in as much as they are obliged to make reasonable investigations as a whole and not to explore extensively every line of defence put forward.

However, this doesn’t give carte blanche to disregard any defence put forward, which by any definition would by “unreasonable,” but rather re-enforces the fundamental need to differentiate the relevance and weight of the evidence rather than the volume: quality over quantity.

To some extent this is supported by CRO Ports London Ltd v Wiltshire, where the presence of an employee’s admission of misconduct doesn’t automatically remove an employer’s responsibility to conduct reasonable investigations. Aside from the issues surrounding “reliability of confessions,” this case highlights a deeper problem of otherwise prohibited and/or unsafe activities being adopted by convention. Here the employee was unaware he was doing anything wrong; on the contrary, he was just following the same procedure as everyone else and arguably in the full knowledge of his employer.

This exposes, albeit slightly tenuously, the issue in Williams v Leeds United Football Club, where the employer relied on an employee’s use of the internet to forward an email containing pornography, five years previously. To focus on the content rather than the action is misleading, in so far as the Tribunal upheld the employer’s right to dismiss the employee based on an historical breach of contract.

Whether the same would apply in relying on the rule that “mail must only be used in the reasonable conduct of the firm's business” is another question, especially in circumstances where personal email exchanges may be common place.

What is clear is that the 6 year statute of limitations or contracts applies to employment, and if a firm wants you out, they’re happy to go beyond ‘reasonable’ investigations, leaving no stone unturned in their ambitions for their desired end result.