Gross misconduct – Law firms – Unfair dismissal

Wilson Devonald Ltd v S Suckling: EAT (Judge Serota QC, D Evans CBE, P Gammon MBE): 3 August 2010

The appellant employer (W) appealed against a decision of an employment tribunal that the respondent former employee (S) had been unfairly ­dismissed.

W was a firm of solicitors specialising in criminal work. S was W’s receptionist and controlled entry into its offices by operating a security lock on the front door. She had worked for W since 1996 and there had been no ­previous concerns about her work. However, over a five-week period in 2008 complaints were made that she had been rude to two visitors legitimately trying to gain entry to the offices. W also claimed that S had admitted two young clients to the offices into an area from which clients were excluded. One of the men had a bleeding hand; both had the hepatitis virus and both were rumoured to be HIV positive. W subsequently carried out an investigation and S was suspended. She was later dismissed for gross misconduct after a disciplinary hearing and her appeal was dismissed.

Satisfied that S had been guilty of gross misconduct, the tribunal found that the investigation and procedures leading to her dismissal had been reasonable, and that W had reasonable grounds for believing that she had been guilty of the misconduct and had genuinely believed in her guilt. However, it went on to find that S’s dismissal was outside the band of reasonable responses, stating that a reasonable employer ‘might’ have asked for an explanation before suspending S given her previous satisfactory work record and the fact that her conduct had occurred out of the blue. W argued that the tribunal had erred by substituting its views for those of the employer.

Held: The correct test that should have been applied to determine whether there had been a fair dismissal was whether it was reasonable for W to have dismissed S on the basis of the gross misconduct which had been found, British Leyland (UK) Ltd v Swift [1981] IRLR 91 CA (Civ Div) applied. The test was not whether a reasonable employer ‘might’ have followed the options; it was whether the dismissal was reasonable in all the circumstances. The tribunal had found that W had reasonable grounds for believing that S was guilty of the misconduct alleged. Where a finding had been made that misconduct amounted to gross misconduct, it would be extremely difficult to characterise a decision to dismiss on the grounds of that misconduct as outside the range of reasonable responses. It could not easily be said that no reasonable employer could fairly have dismissed S for what was complained of. To say that the decision to dismiss was outside the range of reasonable responses was inconsistent with the tribunal’s finding that it was reasonable for W to form the view of the conduct that it had. Furthermore, the tribunal should have considered what a reasonable solicitor, dealing with criminal clientele and needing special security, would have done, NC Watling & Co Ltd v Richardson [1978] ICR 1049 EAT applied. Accordingly, the tribunal had in effect substituted its views as to whether dismissal was a reasonable sanction for those of W. Had the tribunal properly applied the test in British Home Stores Ltd v Burchell [1980] ICR 303 EAT, it would have concluded that the dismissal was a fair dismissal, Burchell applied.

Appeal allowed.

Philip Thompson (instructed by Peter Lynn & Partners (Swansea)) for the appellant.