Unfair Dismissal and the Myth of Red Tape

The Lancashire Telegraph is running a story on the unfair dismissal ruling of a former employee of Moorlands School in Clitheroe, Lancashire.

Along with two other members of school staff of Moorlands School, a private boarding school in Lancashire, the claimant was supervising a school trip at which a number of pupils got drunk. Depending on the exact circumstances, which are not reported, it does appear that dismissal for the teacher’s conduct was probably not excessive. The fact that the Tribunal did not award any compensation for the unfair dismissal – called a Polkey deduction – suggests that the Tribunal agreed.

Nevertheless, Moorlands School were found to have unfairly dismissed the claimant by adopting an unfair disciplinary process. According to the report, one of the main errors of the disciplinary process was the school failed to adequately disclose all the evidence upon which the employer sought to rely to the claimant before the hearing.

In responding the the judgement Jonathan Harrison, the school’s headteacher, went on the offensive and claimed that the problem was really one of excessive red tape:

Judge Howard did find that Mrs Hall was unfairly dismissed due to a lack of evidence being presented to Mrs Hall during the investigatory hearing. This was due to a slight ACAS infringement. As employer it is becoming impossible to fully comply with every procedural aspect of ACAS.

I think the first thing to say is you do not get unfair dismissal judgements for “slight” errors, Jonathan Harrison is simply being duplicitous.

As most readers will be aware the central question before an Employment Tribunal in assessing whether a dismissal is fair is whether the decision is within the ‘band of reasonable responses’. In British Leyland UK Ltd v Swift [1981] IRLR 91 Lord Denning explained this approach.

If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have reasonably have dismissed him, then the dismissal was fair. It must be remembered that in these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.

In short, a dismissal is not made unfair because an employer made a ‘slight mistake’, it is made unfair because it is a decision no reasonable employer could have made. Even if a Tribunal considered the decision of an employer to be wrong and in the same circumstances they would not have dismissed an employee the dismissal is still likely to be fair, like the example given by Lord Dennning above.

And the same principle applies to the disciplinary investigation. The Court of Appeal in Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 made clear that the band of reasonable responses test applies to a disciplinary investigation as well. In order to be a fair dismissal an employer must follow a fair process on the fundamental areas. One of these fundamental principles is making sure employees accused are offered the opportunity to see and respond to any evidence against them. This is a fundamental principle of natural justice that is best enunciated by the comment of Megarry J in John v Rees [1970] Ch 345 that

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”Those who take this view do not, I think, do themselves justice.

As every body who has anything with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Nor are those with any knowledge of human nature who pause to think for a moment, likely to underestimate the feelings of resentment of those who find that a decision against them has been made with their being afforded any opportunity to influence the course of events.

It is precisely this principle that Moorlands School denied the claimant, it denied her the chance to offer a defense to the undisclosed evidence. That is no slight thing, and it would have taken a mere matter of minutes to do.

The simple fact is that if Jonathan Harrison really thinks the relatively simple standards of procedural fairness set out in the ACAS Code of Practice are beyond him he has absolutely no business running a school – he is clearly not up to the job. If he can’t run a fair disciplinary process such as showing an accused the evidence he will rely on to allow an employee an opportunity to explain it then it beggars belief how he can cope with the much  more demanding, onerous and technical duties being a headteacher requires. The more likely scenario, however, is that the school screwed up the disciplinary process and made significant, not slight, mistakes in how the school ran the disciplinary process for Ms Hall. And, rather than face up to those errors and the unnecessary expense that has caused for the school, Mr Harrison is trying to shift the blame to the so-called overwhelming burden of red tape. It is an old, old strategy but hopefully one the school’s staff, pupils, governors and parents will see through.

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