Dark law – Motives for unfair dismissal Part 1
04 May 2009
By James Medhurst
Given the emphasis in the case law, a person could be forgiven for thinking that unfair dismissal law is all about procedure. However, for those new to the area, the approach taken by tribunals can be confusing. Sometimes it seems as though tiny breaches in procedure can be blown up out of all proportion while, at other times, a wholly shambolic procedure can be held to be overall fair, taking all the circumstances into account. At first blush, it can appear that tribunals are woefully inconsistent but, on close examination, there are certain patterns that emerge.
If a layperson was asked what would make a dismissal unfair, he or she would probably suggest that, if an employer had an ulterior motive for dismissing an employee, this would certainly qualify. This intuitive approach to unfair dismissal has received surprisingly little attention in case law but it is possible to see how it could affect the approach to procedure. It is one thing not to follow a line of investigation because it is reasonably considered to be unnecessary but quite another not to follow it because it is feared that it would exonerate the employee for whom an excuse for dismissal is sought. The former is in the reasonable range of responses but the latter is not.
On the face of it, a motive by the employer would seem to go to substantive fairness such that, if the procedure is flawed, the tribunal should make an unfair dismissal finding with an appropriate Polkey reduction if it considers that the decision was not contaminated by an improper motive. However, this is rarely what happens in practice and it appears that procedural and substantive unfairness are too closely entwined to be meaningfully separated.
This shows the importance for practitioners of identifying some reason why the employer would want to get rid of the employee. The motive does not have to be entirely ulterior and in misconduct cases, for example, a common motive is a hunch that the employee is guilty such that the employer pre-judges a situation. This can be sufficient to make a dismissal unfair. Nor does the motive even have to relate to the employee in question. In inconsistent treatment cases, what has often happened is that a form of misconduct has been tolerated by management for a long time and then, at a certain point, it randomly and capriciously decides to crack down upon it without warning.
Some kind of motive for wanting to dismiss somebody will inevitably considerably strengthen any case for unfair dismissal but it would be putting the bar too high to say that the particular motive must always be demonstrated to the tribunal. If an employee hands strong evidence of his innocence to his employer and is simply ignored, this is clearly a wilful failure to investigate rather than a reasonable one. There is self-evidently a motive for dismissal even if it is impossible to know exactly what it is. A more common situation is where the procedure is so bad that it is impossible to determine whether there is an improper motive or not. This will be the subject of a later post.
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