Unfair dismissal, gross misconduct and homophobia
In considering a wrongful dismissal claim, the Tribunal often needs to decide whether or not the employee is guilty of gross misconduct.
Unfair dismissal decision process
When it comes to unfair dismissal that is precisely what the Tribunal should not do – at least until it comes to assess compensation. It should ask whether the employer reached a conclusion that was reasonably open to it – not whether it agrees with that conclusion.
A good example of the wrong approach is the case of Tai Tarian Ltd v Christie. Mr Christie was a maintenance worker for a housing association. He was dismissed when a tenant complained that he had made a series of homophobic remarks when working on her property, making her feel uncomfortable. He denied the allegations completely and argued that his dismissal was unfair.
Unfair dismissal burden of proof
The Tribunal upheld his claim. It relied on the fact that the employer had accepted that Mr Christie was not actually homophobic and concluded that they could not have therefore believed that he had said what he was accused of saying.
The EAT held that this was clearly wrong and was no basis for finding that the employer had not believed that the comments had indeed been made.
Unfair dismissal evidence
The Tribunal had been entitled to criticise the employer for not allowing the employee to see the full notes of evidence taken from the anonymous witness but had not explained why it was unreasonable of the employer to accept her account.
The Tribunal had held that she had embellished her story, but the evidence did not bear that out, showing only minor inconsistencies in the two separate accounts that she had given to the employer.
Claims of homophobia & unfair dismissal
The Tribunal had pointed out that she had a potential motive for fabricating her story (as a result of a previous interaction with Mr Christie) but had not considered whether the employer’s acceptance of her account was reasonable. Clearly the Tribunal had started from the position that it believed Mr Christie’s denials and then worked backwards from there.
The finding of unfair dismissal was overturned, and the case sent back to a fresh Tribunal to be re-heard.
Chris also wrote about homophobia and dismissals in his article on social media posts.
An Employment & HR lawyer's expert opinion
Chris Dobbs on dismissals and anaonymous evidence
While the appeal case was very much about an error in law on the part of the tribunal, it highlights the care employers should take when relying on anonymous evidence.
The new tribunal may still find that the conclusion reached was unreasonable and this could still make the dismissal unfair. Employers relying on anonymous evidence should be careful to show clearly why they believe it despite its anonymity in order to ensure fairness.
This could mean further interviews with the accuser or looking for other corroborating evidence.
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