Dismissal and the Band of Reasonable Responses

The Labour Court held that the Dismissal of Aer Lingus Customer Services Agent for Gross Misconduct was fair.

In  Aer Lingus Limited v Virginia Linehan (UDD2418) [the Respondent”] the Labour Court upheld the Workplace Relations Commission (“WRC”) decision that the dismissal of the Claimant/Appellant for gross misconduct was a fair dismissal  under the Unfair Dismissals Acts 1977-2015.

 

Background: The Claimant was employed as a Customer Services Agent with the Respondent from 13th July 2009 until she was dismissed by the Respondent on 13th May 2021. The claimant’s conduct occurred on the 31st July 2019. The Complainant claimed that her dismissal was unfair. This was disputed by the Respondent on behalf of which it was argued that the Complainant was fairly dismissed for gross misconduct following an incident which occurred on 31st July 2019.

 

The conduct involved the Complainant being verbally abusive to colleagues, calling a number of them “bitches” and “bullies”. The Respondent subbmitted that the Complainant was aggressive and swinging her arms, resulting in other employees being concerned about the health and safety of staff. The Respondent further submitted that the Complainant’s conduct  undermined the Respondent’s trust and confidence in the Claimant which was important considering that the claimant was in a public facing position. 

 

The Complainant accepted that her behaviour on the day in question was unacceptable. Her position was that the matter ought to have been treated as a welfare issue rather than a disciplinary matter, as her Union had requested at the time. She argued that her dismissal arose as a result of her raising a grievance in 2014. She gave evidence that she felt that she was treated less favourably than other employees because of her grievance. The Complainant gave evidence that her behaviour on 31st July 2019 was a stress reaction to “years of bullying”.

 

In its Determination the Labour Court noted that the Claimant’s acceptance that her behaviour on the day in question was unacceptable behaviour in the workplace. The Court referred to the decision in Allied Irish Banks plc v Purcell [2012] 23 EL 189 in which Linnane J. stated as follows:

 

“The correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view”

The Labour Court referred to a UK Court of Appeal case of British Leyland UK Ltd v Swift] which held as follows:

“It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken”

The Court commended the Respondent’s adherence to its procedures, noting that “[n]o flaws in the process used” were argued before the Court; it was not disputed that the Respondent followed a detailed internal investigation, disciplinary process and appeal. The Court referred to the Complainant’s evidence that she was “stressed” on the day of the incident and to the medical certificate which confirmed that she was in a “distressed state”. The Court further noted the Complainant’s evidence that it was a normal day, and her failure to provide a reasonable explanation as to why she went to the HCC when her lunch request had already been approved. The Court further noted her acceptance, without explanation, that she had refused to engage with attempts to de-escalate the situation. For these reasons, and in circumstances where the Court accepted that the Complainant worked in a public facing role, the Court concluded that the Respondent’s decision to dismiss the Complainant was “within the band of reasonable responses” and found that she was not unfairly dismissed.

An Employee can be dismissed for any number of reasons.

 

When is an Employee’s Dismissal Reasonable?

The applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), OF UD ACT  which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

 

In his decision on this case, considering the issue of the response of a reasonable employer, Mr. Justice Noonan referred to the case of Allied Irish Banks -v- Purcell [2012] 23 ELR 189, where Ms. Justice Linnane quoted from the findings in British Leyland UK Ltd -v- Swift [1981] IRLR 91:

 

The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd -v- Swift. The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee. which stated:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view”. “The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

 

In the Circuit Court case of Allied Irish Banks plc -v- Purcell Judge Linnane expressly approved the British Leyland test and she went on to state:

 

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken”.

 

(Also see Unfair Dismissals and Alternative Sanctions)

 

Conclusion: This decision emphasises the importance of fair procedures in dismissal cases. A key factor in this case was the Respondent’s adherence to fair procedures, and to its own internal procedures. This is of utmost importance in conducting a disciplinary process, particularly in situations where dismissal is a potential outcome. The decision is also interesting in highlighting the need to consider the nature of an employee’s role in determining whether or not trust and confidence has been irreparably damaged. The fact that the Complainant’s role was public facing was an important factor in the Court deciding that the decision to dismiss was within the band of reasonable responses. While the Court found that the dismissal of the Complainant for gross misconduct was in this case fair, employers should exercise caution before dismissing an employee for gross misconduct. Employers bear the burden of proof in unfair dismissal cases, and the bar is high.

In a Nutshell:

In relation to a dismissal of and employee, the correct test is: Was it reasonable for the employer to dismiss him? 

If no reasonable employer would have dismissed him, then the dismissal was unfair. 

But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness. 

It is not for the WRC, the Labour Court or the Courts to substitute its opinion on whether the dismissal came within the Band of Reasonable Responses.

Disciplinary hearings and grievance procedure compliance is essential for employers and managers within employment law. It is important to ensure that the necessary procedures that is place, and that it has been issued to and signed off by all employees, in order to guarantee that you can correctly manage disciplinary issues in the workplace.

Current employment law legislation provides that all employees should have received and signed off on the company disciplinary and grievance procedure within 28 days of commencement of employment.

Having a formal procedure in place will remove any ambiguity or accusations of unfair treatment as, when correctly applied, a disciplinary and grievance procedure allows for all employees to receive the same treatment if a disciplinary issue arises.

Fair Procedures

Section 6 (7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to:

(A) The reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and

(B) the extent, if any, of the compliance or failure in comply with the employer in relation to the employee to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

As the employers own disciplinary procedures may be more extensive than the procedures in the Code of Practice, it will be looked to first.

The Rules of Natural Justice for Disciplinary Hearings

Employers who commence disciplinary proceedings against their employees must follow the rules of natural justice. The employee must:

• Be made fully aware of any formal allegation made against them
• Be afforded the opportunity to reply to any formal allegation made against them
• Be afforded the right to representation throughout the disciplinary process
• Receive the right to a full and objective investigation of the allegation
• Receive the right of appeal

Fair Procedures in Disciplinary Hearings Legal Case

Recently, the Employment Appeals Tribunal criticised Dunnes Stores for disregarding the rules of natural justice in the manner they conducted their disciplinary process as they did not provide a checkout operator with an appeal hearing despite her request for one, awarding her €26,000 for being unfairly dismissed. This highlights the importance of adhering to the rules of natural justice.

In another recent case an employee was awarded €1,500 for the unfair dismissal, and a further €2,663 in lieu of four weeks’ minimum notice.

The Tribunal found that the investigative and disciplinary processes in the case “were fundamentally flawed to the extent that the Tribunal considers and holds the claimant to have been unfairly dismissed.” The exclusion of the employee’s union representative and the denial to him of his representative of choice during the process was unfair and a fundamental breach of his contractual entitlements. The Tribunal could not disregard these fundamental flaws, particularly as the firm had the advice of an external consultant in employment procedures available to it.

The recent case of Castolin Eutectic Ireland Limited V Kita [2018] involved an allegation from the complainant that they had been unfairly dismissed following a workplace dispute. During the incident the complainant requested to speak with the operations manager and told another supervisor within the company that they did not trust their supervisor. Following this incident the complainant had taken a number of day’s sick leave. Upon their return to work the complainant was questioned by their manager regarding the incident and they were handed a letter requesting their attendance at an investigation the next day. The complainant was not provided with a copy of the complaint lodged against them and they were denied access to witnesses and notes of the investigation meeting. This was not disputed by the respondent, however, they argued that the complainant’s conduct had amounted to a gross insubordination and thus justified the complainant’s dismissal. The dismissal was upheld by the WRC who held that a gross insubordination had been found.

The Labour Court reversed the decision of the WRC on appeal. The Labour Court held that while the complainant had not followed reasonable instruction, their conduct did not amount to gross insubordination and that the lack of procedural fairness afforded to them further contributed to their dismissal being unfair. No public remedy or re-reengagement was issued in this case; rather the complainant was awarded €10,000 in compensation. This case illustrates the importance of consistency in the treatment of employees pertaining to disciplinary matters and dismissals.

 

Grievances During the Disciplinary Process

Often, during the course of an investigation or disciplinary process, an employee raises a grievance either in relation to the process itself or in relation to some other related or unrelated matter. In this scenario, the first step is for employers to look to their grievance and disciplinary procedure for guidance regarding the policy and custom and practice approach to this issue.

While the UK Code of Practice does not bind Irish employers, in the absence of any Irish legislative or case law guidance on the subject, t is helpful to look at the UK position for some guidance on best practice. The ACAS Code of Practice 2009 provides some guidance on what to do in a similar situation in Ireland. Section 46 states:

“Overlapping grievance and disciplinary cases…where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”.

It is clear that there is no legal requirement to suspend a disciplinary process if a grievance has been raised.

However, where the grievance relates to the process of the disciplinary procedure, it could threaten the integrity of the disciplinary procedure. The employer should consider whether the disciplinary procedure should be suspended for a short period of time while the grievance is considered.

The 2009 ACAS Guide suggests that a grievance raised in respect of fair procedures may require an employer to consider suspending the disciplinary process where: