Unfair Dismissal: Employers Must Consider Mitigation

Unfair Dismissal: Employers Must Consider Mitigation

Vincent T/A Shield Security Service v Hinder

This Employment Appeal Tribunal case provides guidance for employers on the disciplinary process when dealing with employees with a clean employment record.

In this case the claimant was a security guard who was on duty when the premises were broken into. Following an investigation the employer found that the claimant had smoked two cigarettes while walking through the premises.

The claimant apologised, he had a clean employment record and was otherwise a good employee. The employer suspended him and he was eventually dismissed.

The Tribunal found that the employer had not considered any mitigating circumstances before dismissing, and that the disciplinary policy was unclear. On appeal the EAT stated the Tribunal had been correct, by dismissing on the facts of the case without any consideration of any alternatives, it was not the action of a reasonable employer and was not within the band of reasonable responses.

Employers should ensure their disciplinary and grievance policy is well drafted and is fit for use. Training staff on the process is crucial, as action by an employee which may be initially considered to be gross misconduct must not be predetermined prior to an investigation. In order to take an employee through a fair process this case shows employers must look at all the surrounding facts and see what the employee has to say for themselves.

Gamlins can provide a ‘health check’ for your employment needs, drop us a line to discuss how we can mitigate risk to your business. As a North Wales firm we want to help businesses across the region with their employment needs.

Call 01745 343 500 and ask to speak to a member of our Employment Team

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Ron Davison: http://gamlinslaw.co.uk/people/
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