Veitch Penny LLP - Exeter | Crediton, Devon

Case

Patricia Horn v Voluntary Hostels Group - Employment Appeal Tribunal (14/1/03)

Issues

(1) Unfair Dismissal
(2) Gross Misconduct
(3) Band of reasonable responses

Facts

The Applicant was employed in January 1993 as a co-ordinator. The Respondent was a registered charity that providing support, information and training to hostel providers. In 1997, the Applicant's job description changed to director in 1997 and to chief executive in July 1999.

By virtue of a derogatory memo written by the Applicant and circulated to all members of staff, and following a disciplinary hearing, the Applicant was dismissed for gross professional misconduct. This dismissal related to a breach of the Respondent's equal opportunities policy, bullying and harassment. The Applicant then commenced proceedings for unfair dismissal against her employer, the Respondent.

The Tribunal allowed the Applicant's claim for unfair dismissal because the procedure adopted by the Respondent had been flawed. It was found that the chairman of the disciplinary committee "had been too closely involved in the staff complaints" and could not be sufficiently impartial. In addition, the enquiry itself had taken place had been insufficient. With regard to the allegations of bullying, the panel had not identified the allegations it had relied upon precisely enough. The Applicant had not been given the opportunity to cross-examine the witnesses. As a consequence, the investigation did not satisfy the test for misconduct set down in the case of British Home Stores -v- Burchell (1978). The Applicant was then awarded compensation in the sum of £21,068.45 and arrears of holiday pay in the sum of £323.07.

The Respondent appealed both the decisions.

Decision

The Appeal Tribunal found that the original tribunal had erred in a number of ways, which had ultimately undermined their decision. It had incorrectly applied the test in the British Homes Stores case. It should have looked at whether the Respondent had believed the Applicant's guilt, and had reasonable grounds to substantiate it. It did not ask whether the Applicant's dismissal was within the "band of reasonable responses". Furthermore, as the Applicant did not present any evidence or cross-examine the witnesses, a reasonable investigation had been conducted despite the absence of cross-examination.

The appeal was allowed, and the remedies set aside. The matter referred to another tribunal for a full rehearing.

Comments

This case usefully reminds employers of the importance of applying the "band of reasonable responses" test correctly.