Weston Recovery Services v Fisher
Section 98(1) of the 1996 Employment Rights Act (ERA) states that employers have to show the reason for dismissing someone and then under section 98(4), prove that it was fair and that they acted reasonably in the circumstances. In Weston Recovery Services v Fisher, the Employment Appeal Tribunal (EAT) said that a dismissal is fair if the employer followed a fair procedure and it was within the range of reasonable responses to dismiss the employee.
Basic facts
In October 2008, Mr Fisher (who had worked for the company since August 2004) was given permission to take one of the firm’s mini buses on holiday to France.
However, he did not do a safety check on the vehicle before returning it. When it was discovered that the rear step was missing and the seats were insecure (considered to be a safety hazard), Mr Fisher was asked to attend a disciplinary hearing.
He was summarily dismissed on 28 November 2008 for gross misconduct. Following an unsuccessful appeal, Mr Fisher claimed unfair dismissal.
Tribunal decision
The tribunal said that, although dismissal was within the range of reasonable responses, (the seats could have put clients at risk and was therefore serious), it decided that “it was not conduct [that] should be seen as gross misconduct justifying summary dismissal”.
It therefore decided that the dismissal was unfair but his employment would not have survived the notice period. It awarded a total of just over £2000 in compensation.
EAT decision
The EAT said that the first question to be asked under section 98 of the ERA is whether the employer could show there was a potentially fair reason for dismissal. In this case, they could.
The second question was whether dismissal fell within the range of reasonable responses by the employer.
Applying the well-known test set down in British Home Stores v Burchell, the EAT said that the tribunal accepted that the employer genuinely believed on reasonable grounds, following a reasonable investigation that Mr Fisher was guilty of the misconduct of which he had been accused. It also clearly accepted that dismissal fell within the range of reasonable responses open to them.
How then, asked the EAT, did the tribunal come to the conclusion that the dismissal was unfair under section 98(4)?
It decided that the tribunal had been wrong to do so, having come to the conclusion that his conduct did not amount to gross misconduct justifying common law summary dismissal.
Applying the Burchell test, the employer had followed a fair procedure and imposed the sanction of dismissal which fell within the range of reasonable responses. The company’s appeal therefore succeeded.
However, the EAT added that, given the findings of fact made by the tribunal, he was entitled to claim damages for wrongful dismissal.
It therefore found that Mr Fisher was entitled to four weeks net pay and substituted a finding of wrongful dismissal. His compensation was assessed for breach of contract on the basis of his four weeks’ notice, which had not been given, less holiday pay for which he had been paid totalling £798. The tribunal’s finding of unfair dismissal was set aside as was his compensation of £2,118.