Reverend Le Vanttinen -Newton v The Geo Group UK Ltd
Employees can be dismissed (and often are) for doing something that impacted on the reputation of their employer. In Reverend Le Vanttinen -Newton v The Geo Group UK Ltd, however, the Employment Appeal Tribunal (EAT) said that dismissing a chaplain for doing a media interview, contrary to his employer’s express instruction, could not be fair as the company had not bothered to listen to the interview, nor even read a transcript of it.
Basic facts
Reverend Le Vanttinen-Newton was a chaplain for the Geo Group which operated the Campsfield House Immigration Detention Centre on behalf of the Home Office. On 17 July 2007 he gave a short interview to BBC Radio Oxford which was broadcast on 29 July.
He did not get anyone’s permission before giving the interview, contrary to a rule in his code of conduct prohibiting employees from talking to the media “without prior and express permission of the managing director”. However he told his manager on 19 July what he had done.
Following a disciplinary hearing, he was dismissed for gross misconduct on 20 November 2007, on the ground that during the interview “there was the potential for information to be shared which may have brought the Company into disrepute or bring serious discredit to the Company”. The company said it might impact on its relationship with the Home Office.
Reverend Le Vanttinen-Newton claimed unfair dismissal, pointing out that no one in the company had listened to or read his interview and that he had given media interviews before to the “secular” as opposed to the “religious” media without being sanctioned.
Tribunal decision
The tribunal criticised the employer for failing to wait for the outcome of the grievance procedure before holding a disciplinary hearing and that this potentially rendered the dismissal unfair. However, as the company had complied with all the statutory disciplinary procedures, the tribunal decided it could rely on the procedural fairness rule under section 98A(2) of the Employment Rights Act. That is, that even if the defects had been put right, the outcome would have been the same.
Ultimately, it said that the company was entitled to take a strict view of talking to the media without authority and although the decision was harsh, it was unable to say that his dismissal was outside the range of reasonable responses in the circumstances. It further found that if his dismissal had been unfair, it would have found that he was 85 per cent responsible for it.
EAT decision
The EAT agreed that Reverend Le Vanttinen-Newton had been aware of the consequences of breaching the rule. It also found that the tribunal was entitled to decide that, although the chaplain had made a distinction in his own mind between different elements of the media, he was not entitled to subdivide them into different types and seek to attribute different possible disciplinary sanctions to each of them. And although he had told his line manager about the interview before it was broadcast (indicating that he did not think that the company would object to it), that did not excuse him.
However, the EAT then turned its attention to the dismissal letter. It said that there was a big difference between something having “potential” and something being “likely” to occur. As no one at the company had bothered to hear or read a transcript of the interview, the EAT was not clear how the chaplain’s actions could even have the potential to bring the company into disrepute. As this was an essential element of the letter, the EAT was not convinced that the company would have decided to dismiss Reverend Le Vanttinen-Newton had it heard the interview. It could not therefore rely on section 98A(2).
However, it saw no reason to depart from the tribunal's finding that Reverend Le Vanttinen-Newton should be held 85 per cent responsible for his dismissal.