Renfrewshire Women's Aid v Lewis

Whether dismissal is fair depends on all the circumstances and the objective range of reasonable responses under Employment Rights Act 1996, section 98(4). A difference between the outcome of a grievance and later disciplinary proceedings does not automatically make dismissal unfair, but inconsistency may be given substantial weight where the same conduct is first treated as insufficient for disciplinary action and later treated as gross misconduct. An employer must also address apparent bias and observe natural justice in any appeal. An appeal may fail to cure defects where the employee is excluded from a material presentation of the employer’s case. Dismissal for breach of an unclear, unwritten rule, without warning or demonstrated harm, may fall outside the reasonable range.

Marie Lewis, a long-serving employee of Renfrewshire Women's Aid, was dismissed for gross misconduct following allegations of bullying, unauthorised access to work emails from home and breach of confidence. An earlier grievance panel had upheld aspects of the bullying complaint but concluded that disciplinary proceedings were not warranted. Although Lewis was told that she could appeal, the employer later denied that right and commenced disciplinary proceedings.

The Employment Tribunal found the dismissal unfair, relying on the inconsistency between the grievance and disciplinary outcomes, apparent bias in the disciplinary panel, defects in the appeal procedure, and the inadequacy of the email and confidentiality allegations. The employer appealed against that decision.

1. Appeal dismissed. The Employment Tribunal had applied the correct objective test under section 98(4) of the Employment Rights Act 1996. It had not substituted its own view for that of the reasonable employer.
2. A disciplinary panel is not legally precluded from reaching a different conclusion from a grievance panel. The issue is fact-sensitive. Here, however, the employer first treated the conduct towards Sandra Luke as unacceptable but insufficient to warrant disciplinary proceedings, then treated the same central conduct as gross misconduct warranting dismissal. That inconsistency was a factor the Tribunal was entitled to treat as showing that dismissal fell outside the range of reasonable responses.
3. The employer had compounded the problem by denying Lewis the appeal right expressly given to her, after acknowledging her appeal and supplying documents for it. The disciplinary panel was also improperly constituted because members had previously expressed views weighted against her, creating apparent bias.
4. The appeal procedure did not cure those defects. The appeal panel heard the disciplinary panel’s account in Lewis’s absence, without informing her what had been said or giving her an opportunity to respond. That departed from the employer’s own policy and offended natural justice. An appeal should, so far as possible, be conducted in accordance with those principles.
5. The Tribunal was entitled to find that dismissal for accessing five work emails from home was outside the reasonable range. The rule was unwritten and unclear, employees had not been warned that breach could result in dismissal, and no harm had resulted. The conclusion regarding the alleged breach of confidence was also adequately reasoned.
6. The Tribunal’s decision that the appeal procedure did not cure the earlier procedural deficiencies was upheld. The appeal was dismissed.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Tribunal’s finding that the dismissal was unfair.
• Employment Tribunal sitting at Glasgow: found the dismissal unfair in a judgment registered on 9 December 2010 and awarded £42,104.