Misconduct dismissals - no requirement for employer to investigate further once misconduct admitted

6 August 2009
  

In the recent case of Manor Oak (PMG) Ltd v Kelly the EAT confirmed that, for a dismissal to be fair, an employer is not required to take investigations further once misconduct is admitted.

Background
Mr Kelly had worked for Manor Oak Garage (MO) for 36 years as a service technician and MOT tester. In August 2007, he was given a final written warning for an error while repairing a car and advised that the warning would remain ‘live’ for 12 months. In November 2007, he passed a car through an MOT when he should have failed it. During a quality control check, another employee had found damage to the car. Mr Kelly was invited to a disciplinary meeting during which he accepted responsibility for the mistake. He was excluded from the meeting whilst MO took evidence from two witnesses. He was then dismissed for gross negligence. He appealed but was unsuccessful.

Decision at the Employment Tribunal
The Tribunal found that Mr Kelly had been unfairly dismissed. Although satisfied that Mr Kelly was dismissed for misconduct and that MO believed him guilty of that misconduct, the Tribunal held that MO did not have reasonable grounds for its belief. The Tribunal’s reasons were that, at the disciplinary hearing, MO took evidence from witnesses when Mr Kelly was not present, took into account a witness’s evidence that the damage was “deliberate” and that MO proceeded on a “false premise” that the car was unsafe to drive.

Decision at the Employment Appeal Tribunal
The EAT allowed MO’s appeal. It held that the relevant test as set out in BHS v Burchell was whether, in dismissing Mr Kelly, MO entertained a reasonable belief that he had committed the act of misconduct, that its belief was based on reasonable grounds and that it had gained the belief after carrying out a reasonable investigation. The EAT stated that the Tribunal misapplied this test. As Mr Kelly had admitted the act of misconduct, MO was not required to take investigations further. In particular, it did not need to investigate the seriousness of the defect.

In assessing whether the decision to dismiss was within the “band of reasonable responses” (Iceland Frozen Foods v Jones), the Tribunal took the view that the misconduct consisted of a minor error, the car was safe, MO had concluded that Mr Kelly had deliberately damaged the car and that the live final written warning was irrelevant. The EAT held that the Tribunal erred by taking account of irrelevant matters and substituting its own view for that of the reasonable employer.

In relation to procedure, the EAT agreed with the Tribunal that there was unfairness in excluding Mr Kelly from hearing witness evidence at his disciplinary meeting. However, this flaw in procedure did not make the dismissal unfair as he had been supplied with a note of the meeting and he had full knowledge of the case against him at all times. The case has been remitted for a fresh hearing before a differently constituted Tribunal.

Comment
This is a useful decision for employers in relation to the appropriate level of investigation in misconduct dismissals. The case confirms that once an employee makes a clear admission of misconduct, an employer is not required to investigate further in order for the dismissal to be fair. Nevertheless, they should only dismiss where dismissal is “within the band of reasonable responses”. However, for the sanction to fall outside that band, it will have to be so excessive a punishment as to be one which no reasonable employer would have considered imposing. In practice, the Tribunal will not criticize an employer unless the punishment so far outweighs the crime as to render it “obviously excessive”.