Labour & European Law Review Weekly Issue 300 20 December 2012
When deciding whether a dismissal is unfair, tribunals have to consider whether the reason given by the employer was within the range of reasonable responses. In Nejjary v Aramark Ltd, the Employment Appeal Tribunal (EAT) said that, when deciding this question, tribunals cannot take into account factors that the employer ignored when dismissing the employee.
Mr Nejjary worked as a manager for Aramark which provided hospitality services to Goldman Sachs. He was suspended on 11 September 2009 following two complaints.
The first was from a senior Goldman official about the arrangements that had been made for a breakfast meeting she had booked and hosted on 10 September. The second related to a lunch on 11 September when two officials had to move room because the one in which Mr Nejjary had seated them had been booked by someone else. It then transpired that a third official had asked earlier in 2009 for Mr Nejjary not to be assigned to the event she was hosting.
Following a disciplinary hearing on 26 October, he was dismissed for gross misconduct in relation to each of the complaints. Although the company accepted at his appeal that it should ignore two of the complaints, it upheld his dismissal in relation to the “breakfast” complaint on the basis that it amounted to gross misconduct on its own.
Mr Nejjary lodged a claim for unfair dismissal.
The tribunal found that Mr Nejjary had been dismissed for a one off incident and that no reasonable employer would dismiss for a one-off failure to check a booking sheet.
However, as Mr Nejjary had a live warning on exactly the same issue and a second warning on which an appeal was pending, it concluded that it was reasonable for the company to treat his conduct as a sufficient reason for dismissing him.
It then went on to say that, even if it was wrong on that point, Mr Nejjary’s conduct would inevitably have led to his dismissal and, given that he was 100 per cent responsible, it would not have been just and equitable to award him any compensation.
Mr Nejarry appealed, arguing that the tribunal had substituted its view for that of his employer by taking warnings into account which had not formed part of the employer’s reason for dismissal.
And the EAT agreed, saying that the tribunal must confine itself to the employer’s reason for dismissal and was not entitled to import or substitute its own reason, which was what it had done.
In this case, it said that “the plain fact, as found by the tribunal was that the reason and the only reason for the dismissal was the single matter that remained extant at the time of the appeal”. In other words the “breakfast” complaint, which amounted to a failure to check a booking form. “That was the reason for the dismissal and the reason for the dismissal was not anything else.”
It also found that the tribunal erred in law in finding that Mr Nejjary’s other conduct outside of the breakfast incident meant he contributed 100 per cent to his dismissal as these matters were not behind the company’s decision to dismiss him. When considering contribution tribunals must confine themselves only to matters of conduct which had caused or contributed to the dismissal.
There was no connection, said the EAT, between the earlier warnings that had been given to Mr Nejjary (or the conduct that had led to those warnings) and the final reason for dismissal and therefore that conduct could not be taken into consideration.
The decision to dismiss was therefore unfair.