Wilson Devonald Ltd v Suckling

In a conduct dismissal, the question is whether dismissal fell within the range of reasonable responses open to a reasonable employer. The tribunal must assess the employer’s decision at the time it was made and must not substitute its own preference for a lesser sanction. A finding of gross misconduct will ordinarily make dismissal difficult to characterise as outside that range, although the overall circumstances remain relevant. Suspension is a neutral act intended to facilitate investigation and does not itself imply criticism.

The employee, a receptionist at a criminal law firm, was dismissed for gross misconduct following incidents involving rude treatment of visitors and admitting two injured clients to restricted premises before allowing them to leave by a back entrance. The Employment Tribunal found that the employer had a fair reason, reasonable grounds for believing the misconduct, and fair procedures. It nevertheless held that dismissal was outside the range of reasonable responses, having regard to the employee’s long and previously satisfactory record and possible lesser sanctions.

The employer appealed, arguing that the tribunal had substituted its own view for that of the employer. The central issue was whether the tribunal had applied the correct test of reasonableness.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the claimant’s dismissal was declared fair. The matter was not remitted.
2. The correct question was whether it was reasonable for the employer to dismiss on the basis of the gross misconduct established. The question was not whether the tribunal considered that a lesser penalty would have been preferable, nor whether another reasonable employer might have adopted a different sanction.
3. The Employment Tribunal had correctly addressed the investigation, procedure, the employer’s genuine belief in the misconduct and the reasonable grounds for that belief. It then fell into the substitution mindset by treating possible alternatives, such as a warning or training, as showing that dismissal was outside the reasonable range.
4. Suspension is a neutral act designed to enable a proper investigation. The suggestion that the employer should first have sought an explanation before suspension did not establish that dismissal was unreasonable.
5. The conduct had been found to amount to gross misconduct. That was prima facie a dismissible offence, and it was difficult to conclude that no reasonable employer could fairly have dismissed in the circumstances, including the security-sensitive nature of the employer’s business.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal’s decision promulgated on 17 December 2009. Appeal allowed and dismissal declared fair.
• Employment Tribunal, Cardiff: Found that the dismissal was for conduct under section 98(2) of the Employment Rights Act 1996, that the procedures were fair, but that the dismissal was unfair because dismissal was not a sufficient sanction.