Employment Law – Unfair Dismissal – Complaints About an Employee’s Attitude – Written Warning

The case of Ranger v BIT Systems Ltd [2007], involved a determination on whether an employee’s dismissal fair or unfair. The employee was a salesman who worked for the employer, a small family company principally concerned with the sale of specialist electronic point-of-sale equipment. The employer was heavily reliant on a third party software company that referred a large amount of business to it.

A number of complaints were made about the employee’s attitude over the course of his employment, culminating with the employer sending him a written warning. Shortly after the warning had been issued, the employer received a complaint from the software company that the employee had been critical of their products to a potential customer. This event meant that the employer decided to replace the written warning with the instigation of formal disciplinary proceedings.

In addition to the software company’s complaint, the disciplinary hearing encompassed the number of matters outlined in the warning letter. Following the hearing, the employee was dismissed on the basis of his gross misconduct. He appealed under the internal appeal procedure, but his appeal was subsequently dismissed.

The employee presented his originating application to the employment tribunal complaining of unfair dismissal. In its decision, the tribunal made no reference to the statutory dismissal and disciplinary procedures or any mention of whether the dismissal might be automatically unfair under s.98A(1) of the Employment Rights Act 1996. The tribunal did, however, focus on the question of fairness under s.98(4) of the 1996 Act.

It was held that, considering the complaint made by the software company and the potential damage to the employer’s relationship, the employee’s dismissal had been fair. The employee was not happy with this decision and therefore appealed.

The employee argued that the complaint made by the software company had not been properly disclosed to him prior to the disciplinary hearing. Accordingly, the employer’s decision to dismiss him on the basis of this complaint had been unfair. The issue for determination by the tribunal was whether the failure of the employer to put the complaint to the employee during the disciplinary process nullified the employer’s decision.

The appeal was allowed.

It was held that in deciding whether or not the employee’s dismissal fell within the range or reasonable responses open to the employer, the tribunal plainly attached significant weight to the software company’s complaint, yet the employee was not given an opportunity to deal with it at the dismissal or appeal stage.

The tribunal had erred by not considering whether a failure by the employer to raise the complaint with the employee at any point in the disciplinary process meant that the decision was subject to procedural unfairness. Further, they had failed to consider the fact that, according to the employer, it did not form part of the reason for the employee’s dismissal when he was dismissed or when he appealed. Accordingly, the matter would be remitted to a fresh tribunal for rehearing.

© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.