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Fairness of dismissal based on HR's recommendation

Posted by TonyBrownEmploymentSolicitor on January 27, 2014

When a case of unfair dismissal comes before a tribunal, the tribunal must not substitute their own view of the proper conclusion to be drawn from the information in front of the employer but look only at whether the employer’s decision was within the range of reasonable responses available to an employer.

The next case is a recent example of a tribunal impermissibly substituting their view about whether the Claimant’s conduct amounted to gross misconduct. It also vindicates the use by small employers of external HR consultants to manage their disciplinary proceedings.

The employer had just 9 employees. Its managing director became aware of conduct by the Claimant (a senior manager), engaging in sexual activity with a member of his staff on company premises after hours. He appointed an external HR consultant to conduct the disciplinary hearing. After the hearing, she recommended dismissal and sought the managing director’s authority to dismiss the Claimant and received it. The Claimant appealed that decision. His appeal was heard by another HR consultant. Having considered the matter she also sought and obtained the managing director’s authority to dismiss the appeal.

The ET rejected a submission by the Claimant that the procedure used in his dismissal was flawed. Their reasoning was as follows:

"We have considered whether a reasonable procedure had been followed by the respondent. We reject the submission of Mr Tinnion that the procedure was flawed because [the managing director] was effectively the dismissing officer and the appeal officer. In this case [the managing director] brought in consultants to deal with this matter as he was involved in the matters under investigation as he was a witness to the events and could not impartially deal with the resulting proceedings. The fact that a consultant brought in to deal with such matters advises the owner of the business of the decision and seeks permission to implement it does no more than reflect the reality of the situation. In an organisation of the size and administrative resources of the respondent company and given the senior position of [the Claimant] in the company, the actions taken to deal with the disciplinary proceedings against [the Claimant] were reasonable”

However, the ET ruled that the Claimant’s dismissal was unfair because, in their view, no reasonable employer would categorise sexual activity between two adults out of hours in a deserted office as gross misconduct justifying summary dismissal.

The EAT ruled that this was a plain example of the ET impermissibly substituting their view for that of the employer and allowed the employer’s appeal against the finding of unfair dismissal.


Many small employers rely on external HR consultants to manage their disciplinary proceedings and they will welcome a ruling that it is fair for an employer to dismiss an employee on the recommendation of an external HR consultant.

Tribunals frequently substitute their decision for that of the employer. However, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to

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