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Reason for Dismissal
When an Employment Tribunal assesses whether an employee was dismissed fairly or not, it must determine the reason for the dismissal; this means that the Tribunal will need to establish what was in the dismissing officer’s mind at the time the dismissal took place.
A recent case illustrates how important it is for an employer to state clearly in its witness evidence the reason or reasons the dismissal was made.
In this case, the employee was dismissed for three separate matters. When he appealed, the employer did not overturn the dismissal but made it clear that it relied on only one of those matters, as that was a gross misconduct offence it warranted dismissal.
When the case came before the Employment Tribunal it found that the decision to dismiss for this one matter was outside the range of reasonable responses and would normally be unfair. However, the Tribunal went on to say that because the employee had been given previous warnings that the decision to dismiss was, in this case, a reasonable response and was therefore fair.
When the case went to appeal, the Employment Appeal Tribunal (EAT) stated that the Tribunal should not have taken into account matters which the employer did not have in its mind when dismissing the employee. In other words, the previous warnings were not mentioned in the employer’s reasons for dismissal. The EAT stated that the reason for dismissal must be “the reason which was extant and operative in the mind of the employer”.
Employers should remember, both at dismissal and appeal stages, that reasons for dismissal must be stated in the dismissal letter and/or in the appeal letter. If the employer is relying on a number of issues, this must be made clear. Should the case go to Tribunal, the dismissing officer must also state the reasons for dismissal in his/her witness statement.