Are Judges Eroding Unfair Dismissal by Not Overstepping Into Managerial Prerogative>

Topics: Law, Employment Appeal Tribunal, Employment Pages: 10 (3554 words) Published: March 26, 2013
There have been many justifications offered for the intervention of unfair dismissal law in the employer's ability to manage its own business: redressing the imbalance in bargaining power between employers and employees; protecting a property right that employees have, or ought to have, in their jobs; and protecting the dignity and autonomy of employees. The protection of these values is far from absolute, and in many cases economic efficiency and managerial discretion take precedence, but unfair dismissal law demonstrates society's recognition of the importance of these values. Section 98 of the Employment Rights Act set out a list of potentially fair reasons for dismissal. In evaluating an employer's decision to dismiss an employee for misconduct, an ET will consider the fairness of the investigation the employer conducted into the misconduct, the reasons the employer had for believing the employee had engaged in the alleged misconduct, the procedure the employer followed in dismissing the employee, and the decision of the employer to use dismissal, the most severe sanction available to it, as a response to the misconduct In cases of misconduct, the tribunal has held its position as merely a bystander to see if the employer has acted reasonably towards the employee without substituting its own views and opinions with that of the management. The EAT reaffirmed this in the case of Trusthouse Forte Hotels Ltd v Murphy when they reversed the ET’s decision of unfair dismissal because they thought the punishment was too harsh for the crime. The EAT made a point of stating that it would place an ‘unreasonable burden’ on employers if they could not fairly dismiss employees who had stolen property which had been entrusted to their care. The courts also hold that the employer need not prove the misconduct beyond all reasonable doubt, for this would impose a high commitment than possible to fulfil. The case of Laurie v Fairburn illustrates that in so as long as there are reasonable grounds and a proper investigation, the courts need not be convinced the misconduct actually happened as their only job is to review the reasonable conduct of the employer. This highlights the much criticised managerial ‘laissez-faire’ type of attitude adopted by the courts. By this same reasoning it is irrelevant if the employee faces a criminal charge and is then acquitted as shown in the case of Da Costa v Otpolis where the claimant was still dismissed after his criminal charge ended in his favour. The courts maintain that an employer must be consistent in his procedure and flexible in his decisions. The courts suggestively urge that an employee look into an employee’s past good character as a mitigating factor before dismissal on the basis of misconduct. Taylor v Parsons Peebles Ltd the tribunals held the dismissal as unfair as the claimant was dismissed for fighting after 20 years of a clean record. The EAT held that the act of the Employer in this situation was unreasonable. This is one of the few times in which the courts will intervene and overturn an employer’s decision, if it appears to be an unreasonable decision. There are also situations where contractual rights may be held to be obstructive in nature. For example, in Penguilly v North Devon Farmers Ltd the tribunal held that the refusal to work overtime warranted a dismissal, even though he was not contracted to do so, and therefore put improper pressure on the employer where as in Burns v Ideal Timber Products it did not because Burns was trying to get the employer to improve working conditions. Employees also have to be careful of out of work conduct dependant on the type of work they do, the nature of their job and other factors. Previous case law has shown that Tribunals are willing to uphold dismissals of misconduct that are not even in the work place. Pay v Lancashire Probation Service illustrated this where the courts held that his interest in bondage, sado-machist and fetish...
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