Employment Update September 2009: Misconduct

28 September 2009

Dismissal for undisputed misconduct must still be handled fairly

In the case of Vanttinen-Newton v The Geo Group UK Ltd, the employee's contract expressly provided that he should not give unauthorised interviews to the media. He gave such an interview on local radio and was so unconcerned about doing so that he told colleagues about it before he did so.

His employer started a disciplinary process that led to his dismissal on grounds of misconduct The dismissal letter referred to a serious breach of company rules that ‘in the company’s reasonable opinion is likely to bring the company into disrepute' .

The employment tribunal found that the employer's actions passed the Burchell test of fairness - it was within the 'range of reasonable responses' for an employer to dismiss in such circumstances.

The employee appealed.

The EAT allowed his appeal. The employer believed on reasonable grounds that misconduct had occurred (indeed the employee had admitted it) but, on the facts, the wording of the dismissal letter caused the EAT some difficulty. The employer had not even listened to the radio interview to see if it brought it into disrepute.  How could it then be a fair process when the likelihood of disrepute was given as the reason for dismissal? The dismissal was procedurally unfair. 

Points to note -

  • The employer in this case could well have successfully defended the claim if the dismissal letter had been more carefully worded. The mere giving of the interview was gross misconduct. Also, the EAT had rejected the employee's alternative argument that because he had given such an interview before, he was entitled to assume authority to do so again. On the previous occasion, his manager had been giving the interview with him so had obviously authorised the giving of the interview and its content. This was a different case.

  • The employer had some consolation in that, although the dismissal was found to be procedurally unfair, the claimant's compensation was reduced by 85% because he had broken a strict rule. However, the case should really have never got to tribunal in the first place. Please consult us for more advice on how to minimise the risk of unfair dismissal claims.