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Unfairness

The Employment Rights Act says that employees have the right not to be unfairly dismissed, and whether or not an employer’s decision to dismiss was unfair is to be decided by the tribunal ‘in accordance with equity and the substantial merits of the case.’

You might think that that meant an employment tribunal had to decide whether they thought your employer had acted unfairly in dismissing you. You’d be wrong: over many years, judges have decided that what Parliament was really trying to say was that where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the tribunal should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer. Any time a tribunal actually decides for itself (as the Act seems to tell it to) whether a decision was fair or unfair, it gets firmly slapped down by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of reasonable responses. This makes winning unfair dismissal cases – especially where you’ve done something wrong, but your employer has overreacted by dismissing you – pretty difficult.

Given that background, the judgment of the Court of Appeal in Robert Newbound v Thames Water Utilities provides a little bit of comfort. It doesn’t disturb the received wisdom, but it does at least emphasise that if it’s not for the ET to substitute its judgement on the merits of dismissal, it’s not, either, for the EAT to substitute its judgement for that of the ET.

Mr Newbound had (ironically) relied on his own judgement about whether it was safe to enter a sewer without breathing equipment. The employer had recently introduced new health and safety practices, under which he had signed a form indicating that he knew he was required to use breathing equipment for this particular task. He hadn’t read the form properly, of course, and didn’t realise that under the new regime he was likely to be disciplined for making his own judgement about safety. The tribunal had found his dismissal unfair. The EAT said that was ‘substituting its judgment’ for that of the employer. The Court of Appeal said there was no error of law in the ET’s approach, and restored its decision.

5 comments

  1. Douglas

    Naomi

    Against all odds!

    These judgments pose the question.

    To be fair the reasonable employer had two correct paths?

    1) Discipline both the claimant and his supervision.
    2) Fire them for gross misconduct.

    Basically treat all employees the same.

    From an employers point of view the 2nd is the most attractive and reasonable, who employs disruptive employees who do not follow health and safety procedures design to limit an employers liabilities?

    The reasonable test would also not apply leaving the employer with no case to answer.

  2. Abdul

    “…provides a little bit of comfort. It doesn’t disturb the received wisdom, but it does at least emphasise that if it’s not for the ET to substitute its judgement on the merits of dismissal, it’s not, either, for the EAT to substitute its judgement for that of the ET.”

    In real life, the only comfort from this decision will be for employers.

    British judges have never felt bound by laws or by binding previous decisions. As the majority of Employment Judges are believed to be serial liars who cheat in favour of Respondents who belong to the Establishment, let me tell you what will, most probably, happen :

    The Employment Judge will twist this decision to be against a Claimant, when he/she can twist it that way, while when he/she can twist it for a Respondent, that’s what will happen.

    After all, British judges (not only Employment judges) are well trained not only simply to be biased, but how to distort interpretations of laws, of precedents, and of facts so as to make the Establishment win.

    Have a look at the following, and of course you may lambast or correct me if inadvertently my facts are wrong.
    There was a case of a lady in one ET who has decided to withdraw her claim after the PHR. But the Respondent demanded compensation, alleging that she had lied twice, which I believe she has admitted. The ET gave the Respondent the requested compensation as a punishment to these two lies. The EAT reversed the decision, saying that the two lies have been unimportant and without consequences to the Employer. A yet higher court reversed this decision of the EAT, saying that a lie is a lie is a lie. According to this higher court, it does not matter that the lie was unimportant and on marginal matters. So she had to pay full costs after all.

    What I want to compare it to here is not the obvious : that Respondents and their witnesses lie so much in Employment Tribunals and nothing happens to them, they still win, despite their clear perjuries.
    But look as a perjury case in Scotland. The accused was caught, so I understand, in one or more lies under oath. But he was acquitted because, according to the court, the lie or lies were on marginal matters and not important for the main case. As you can assume, the gentleman who was acquitted was a member of the Establishment, not a simple poor employee like the lady from the ET case.

    It would be totally mistaken to get enthusiastic about any judgment of any British court. As I said, Judges are skilled in perverting any law, precedent, decision, fact so as to suit the Establishment side. In Britain, and presumably everywhere in the world, judicial decisions are a matter of power, not of justice or of strict law. There is no “rule of law” in Britain or in British courts, just “rule of lawyers” or “rule of the powerful”.

    One clear example of this is a decision of the EAT that costs in Employment Tribunals must be only compensatory, not punitive. It is not followed by ET judges. In fact they use costs as a strategic weapon against Claimants.

    The lesson is : never get overexcited about any judicial ruling until you actually see that it has been used in your favour by a court.

    • Naomi

      Hi Susie

      I’m afraid I’m deleting your post. We have a couple of posts on the subject ‘are ETs corrupt?’ on which you are very welcome to contribute comments of this nature, but it’s off-topic here.

      kind regards

      Naomi

      • Botevyle

        The ET may not be corrupt but is it ‘fit for purpose’. ?
        With so many examples of difficulties in obtaining even a vaguely reasonable outcome from the ET and so many changes in judgements.
        If you can survive the injurys caused by Judges comments , manage to cope with the escalating, the systems failures the appeals, the years of your wasted time and money as well as the trauma of reliving your experience time and time again, if you are able to write about it, give evidence about it time and time again, tell the truth time and time again, you are often discarded because the last judge didn’t understand.
        Discrimination
        Right to a fair hearing
        Right to privcy
        Dignity !!
        If you do nothing wrong but you are accused through ET, who writes to tell you that you aren’t guilty or apologises?
        Who withdraws the allegations made ?
        If you aren’t a large company or are an honest hardworking employee who says you were right – and absolves you of wrongdoing.
        You arent found guilty or not guilty -is the ET fit for purpose ?

    • Naomi

      I’m afraid I’m deleting this comment: if you want to make general comments reflecting your view that ETs are corrupt and the system stacked against claimants, the place for them is on one of our two posts on that subject. It’s off-topic here.

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