A reasoned discussion of the 'range of reasonable responses'


In HCL Safety Ltd v Flaherty,  Flaherty was dismissed by his employer for misconduct after working on a roof without a safety harness, despite instruction not to do so. The Employment Tribunal held that in this instance,  the dismissal was ‘within the range of reasonable responses’. However, the ET held that the dismissal was procedurally unfair; it was not convinced that there had been a proper investigation of the incident. During the disciplinary meeting at which the employee was dismissed, the decision regarding his dismissal appeared to have already been made. Further, the employee was not supplied with written witness statements or written notification of the meeting.

The EAT disagreed and said that the dismissal was fair.

Procedural issues should not be considered in isolation from the reason for the dismissal, as one will impact on the other. Where an employee has confessed to misconduct, this will impact on the extent of the investigation required. Therefore in this instance, missing paperwork did not prejudice the claimant at the relevant meeting. There was nothing that the Claimant could have said at the meeting regarding his misconduct (which he had already admitted) that would have made any difference to the outcome.

Point to note:

If an employer can show that it had a genuine belief based on reasonable grounds that an employee was guilty of misconduct, and the employee had admitted this misconduct, the only remaining question to be decided in relation to fairness of the procedure is whether there was proper investigation into the incident.