Under section 98 of the Employment Rights Act 1996, a dismissal is unfair unless the decision to dismiss:
- Was for one of five ‘potentially fair’ reasons; and
- Fell within the “band of reasonable responses” according to the Employment Tribunal.
In an unfair dismissal claim, the onus is on the employer to prove that the dismissal satisfied the above criteria.
Sion Donovan had worked as a baker at Greggs for 11 years with an exemplary service record and no prior disciplinary warnings. He was dismissed for not washing his hands prior to re-entering a food preparation area; an act which his employer felt amounted to Gross Misconduct due to the risk to customers’ health and a flagrant breach of the company’s very strict health and safety policy.
Mr Donovan was dismissed without notice following an investigation, and submitted a claim to the Employment Tribunal for unfair dismissal, arguing that the outcome of the disciplinary process was unreasonable given his 11 years’ service and that this incident was a ‘one-off’.
The ET disagreed.
Having considered the potential implications of the breach in this case, they found that Greggs’ decision to dismiss was within the band of reasonable response in light of the facts. They considered that the potential loss to the company, should employees be allowed to breach the hygiene policy, would be significant.
The band of reasonable responses is broad and can give an employee the upper hand in cases like this. Even if a dismissal is considered harsh, it may well fall within the broad band of reasonable responses.
What does this mean for you or your business?
The decision in Donovan v Greggs is reassuring for employers in that it confirms that the ET can support employers if there is evidence of a clear investigation, consideration of the circumstances and a reasonable decision to dismiss. In this case, the ET considered that although Mr Donovan had 11 years’ service and this was a relatively ‘minor’ one-off incident by ordinary circumstances, it was still within the ‘band of reasonable responses’.
Whilst this case may be taken into consideration by employers when deciding to dismiss an employee for a single breach of policy, we recommend that professional advice is taken in respect to individual circumstances. As this judgment is delivered by a first tier Employment Tribunal, other Tribunals are not required to follow the same reasoning and a similar claim, heard by a different Judge or Tribunal, may result in more negative outcome for an employer.
What do you need to be doing now?
- Make sure your policies are clear and tailored to include any specific circumstances that your company feel are important enough that a breach of the policy would amount to Gross Misconduct. For example, for a company that handles products for human consumption adherence to the health and safety policy is paramount.
- Make sure your employees are aware of the policies and procedures in place, ensuring that you have accurate training records to support this.
- Should an issue arise, ensure that you follow a clear investigation process and keep contemporaneous records throughout.
- Take legal advice on a case by case basis.
If you need any further or more specific advice, please do not hesitate to contact our Employment team, who will be happy to help.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.