Dark law – Motives for unfair dismissal Part 2
15 May 2009
By James Medhurst
The range of reasonable responses test means an employer has a lot of leeway in dismissing its employees for misconduct. This makes it impossible in practice to run a ‘de minimis’ argument and suggest, for example, that a theft of something small in value can never be a dismissible offence. Furthermore, it follows that there should be no difference in the procedural requirements for dismissing someone for stealing £1,000 and dismissing them for stealing a penny. In practice, however, tribunals will examine the procedure more stringently in the latter case and there is support for this approach in Taylor v OCS Group, at paragraph 48, although the reasoning is brief.
However, when the importance of motive is appreciated, this makes a great deal of sense. If an employee has a row with his manager and then, a month later, she dismisses him for stealing £1,000, it is difficult to believe that it is the argument which is in her mind at the time of the dismissal rather than the theft. On the other hand, if the theft is of a penny, that argument becomes much more compelling. The very fact that a dismissal is for a trivial reason makes it less credible that it is genuine so that relatively minor breaches of procedure become suspicious.
In addition, there are excellent policy reasons for forgiving technical breaches of procedure in the case of serious misconduct, especially theft. By their very nature, thieves are attracted to the idea of free money and, in my experience, they appear to be particularly prone to bringing claims. It is undesirable that they should benefit from their dishonesty. On the other hand, employers need to be reminded of their obligations and should not be made to feel that they do not need to comply with procedures so there are benefits in bringing this part of dark law into the light. Then it can be made clear to them by Employment Judges that they are exposing themselves to risk, even if it is necessary for them to succeed in a particular case. It may also dissuade thieves from hopeless cases.
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