Giving full expression
Labour & European Law Review Weekly Issue 490 05 October 2016
When considering unfair dismissal claims tribunals have to decide whether the employer’s reason for dismissal was the true reason and if the employer acted reasonably in dismissing for that reason. In Dronsfield v University of Reading, the Employment Appeal Tribunal (EAT) held that where the reason for dismissal was misconduct, this required a consideration of the contractual definition and whether the conclusions of the investigatory report were objectively fair.
Dr Dronsfield, an Associate Professor at the university, was supervising the dissertation of a student, A, during the academic year 2011-2012. In November 2011 he had sex with the student, but contrary to guidance issued by the university, he failed to inform his head of department so that the necessary arrangements could be made to ensure the student was not advantaged or disadvantaged.
When the university received a complaint in June 2013 from the student’s former boyfriend, it initiated an investigation which found that although there was no evidence of any “predatory intent” on Dr Dronsfield’s part, he should have reported the matter. However, although other sections of the report were also favourable to Dr Dronsfield, these were later removed after discussions with a member of the Human Resources team and in-house lawyer.
The University was established by Royal Charter and Dr Dronsfield’s contract of employment was governed by a number of statutes pursuant to the charter. In particular clause five of statute 33 stated that he could only be dismissed for “good cause”. Good cause included “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”. He was subsequently dismissed on this basis.
Equating the words in the charter with gross misconduct, the tribunal rejected Dr Dronsfield’s claim on the ground that the decision to dismiss was within the range of reasonable responses open to the university. Furthermore the tribunal found that there was nothing improper in the investigation even though matters favourable to Dr Dronsfield had been removed from the final report.
Dr Dronsfield appealed on the grounds that equating the words “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office” with gross misconduct was an error of law. Furthermore the tribunal had failed to apply an objective test when deciding the fairness of the investigation.
Agreeing with the tribunal that the university could apply contemporary standards when considering the words in the charter, the EAT held, however, that it was wrong to apply the more general concept of gross misconduct, as opposed to the actual standard set out in the University’s statutes.
As the tribunal had failed to consider whether it was reasonable for the university to find that that Dr Dronsfield was guilty of “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”, it had misapplied the law.
It also found that the tribunal misapplied the law in relation to the investigation carried out by the university. In particular it had failed to consider whether it was reasonable to dismiss in circumstances where important conclusions in the report that were favourable to Dr Dronsfield had been excised. The tribunal should have asked whether the conclusions of the investigation were fully expressed in the report and whether it was reasonable to dismiss, given those omissions.
As the tribunal had misapplied the law on two issues of “considerable significance”, the EAT held that the case should be remitted to a freshly constituted tribunal to reconsider all the issues.
The case is particular to its facts since it is only in rare cases that the contract prescribes an exhaustive list of the reasons for dismissal. Where the contract does so this case is a reminder that employers need to ensure that the decision to dismiss is consistent with the terms of the contract.