Page 26 - BOSS Today Issue 14

HR

bigger company,

bigger issue

Two cases show how the manner in which you deal with a dismissal case
often hinges on how big you are as an employer

hen advising a company of this size, in this
on redundancy situation, looking at reducing the
Wprocedures, size of its SMT, the approach taken
employment lawyers tend to was deemed to be reasonable.
emphasise that employers It seems that it is not always
should use objective criteria necessary to construct a complex
when selecting from a pool of matrix of criteria when selecting
employees. Whilst this is good for redundancy, particularly if you
advice, Mitchells v Tattersall are a smaller company.
suggests otherwise. But objectivity should not be
Mitchells, the brewery, had a thrown out of the window. The
senior management team (SMT) decision might well have been
of five. When the company ran worse for the company if a similar
into financial difficulties, the board approach had been taken to a
decided to look at cutting the larger pool of shop-floor workers.
SMT to reduce expenses. The For an illustration of how a
board identified the property company’s size can determine
manager as the manager who how it is expected to behave, you
contributed least, and was least need look no further than BT v
likely to bring in revenue, and on Daniels, a case which concerned
that basis decided he should be a BT engineer dismissed for three
made redundant. He successfully offences of dishonesty.
claimed unfair dismissal. In the course of the disciplinary
The ET found that the dismissal proceedings, a report showed
was unfair because the board that the employee had a history ET of matters that included the his HR department, which looked
had used subjective criteria when of significant stress-related fact that this is a large employer, at only one aspect of a medical
selecting for redundancy, and mental health issues. Although the claimant has a long-standing report that suggested some of
that the procedure followed was the report expressed the view relationship with it with no the claimant’s problems had been
unfair. that the disciplinary process disciplinary record, and at the resolved, and advised him to
Mitchells appealed to the EAT, could exacerbate his condition, tribunal there was, essentially, no proceed on that basis.
which upheld the unfair dismissal and suggested an occupational dispute about the facts.” But these two cases are in
finding, but only on the ground health report be obtained before The EAT confirmed that the many ways a reminder that a
that the procedure had been proceeding, this step was not ET had directed itself correctly high procedural standard can
unfair. In particular, the board had taken. in not imposing its own view of be expected of an organisation
jumped straight from identifying The EAT upheld the decision reasonableness and in looking employing over 100,000 people.
the claimant as the most likely of an ET that a reasonable at what a reasonable employer Smaller organisations like Mitchells
candidate to dismissing him, employer would have obtained would do in circumstances that need not necessarily follow such
without even considering any an occupational health report. are not straightforward. complex procedures.
other member of the SMT for On behalf of the claimant, it Reading between the lines on
redundancy. was argued that: “The range of the particular case, it appears that n For more inFormation,
But the EAT rejected the reasonable responses required the manager carrying out the contact your BoSS Hr
ET’s finding on selection: for an objective consideration by the dismissal relied on advice from adviSer on 0845 450 1565.

September/October 2012 | BOSS TODAY 33