Employee Relations and Legal Issues in HRM.
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D B Schenker Rail (UK) Ltd v Doolan (2011)UK/EAT/0053/09
Doolan worked as a Production Manager for the organisation. This was a safety critical role, and one which he found stressful. Towards the end of 2007 the stress was such that he took a period of sickness absence, he felt ready to return to work in early 2008.
Before allowing, him to return to work the organisation carried out a medical investigation and an Occupational Psychologist expressed concerns that Doolan would suffer from stress related issues if he returned. The employer was not convinced that Doolan could return to the role and offered various alternative roles. Doolan refused these, and was subsequently dismissed on the grounds of capability.
The Employment Tribunal found that this was an unfair dismissal, but the EAT overturned this decision. The EAT ruled that the medical investigation had been thorough, there was a reasonable belief that further periods of absence due to stress would occur and, in the circumstances, it was appropriate to dismiss.
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British Home Stores v Burchell (1978) IRLR 379.
This case demonstrates the need for the employer to have a reasonable belief in the guilt of the employee, based on a reasonable investigation.
Burchell was dismissed because of irregularities in staff purchases. Evidence was obtained from dockets relating to purchases of Burchell and other staff, and a statement from another employee. Burchell took a claim of unfair dismissal to the employment tribunal, which supported her claim stating that BHS had not clearly established Burchell’s guilt. The EAT overturned this decision, stating that the employment tribunal had tried to apply tests more fitting to a criminal investigation. This strict standard of proof was not required – what was required was that the employer had a reasonable belief based on a reasonable investigation. The EAT identified three key elements to this process:
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the fact underlying the belief must be established
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the belief must be held on reasonable grounds, after an appropriate investigation
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the investigation must be reasonable, in the circumstances.
It is important to note that the level of investigation and belief required in order to proceed with a dismissal is not the same level as that required in a criminal prosecution. The importance of carrying out a fair investigation was emphasized by the Court of Appeal in the following case:
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Salford NHS Trust v Roldan (2010) EWCA Civ 522
Roldan, who had worked for the employer without any problems for four years, was accused by another employee of abusing a patient. Roldan was suspended without the allegations being put to her, and another allegation (that had never been investigated) was also considered in making the decision to dismiss. The first time that Roldan saw the charges in writing was in her dismissal letter.
The employer only spoke to the employee who accused Roldan of abusing the patient. It did not speak to any other employees or patients who might have witnessed the event.
The employer went ahead and dismissed Roldan. The Court of Appeal held that the dismissal was unfair.
In doing so, it set out three important principles:
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The more serious the potential consequences of the dismissal the more thorough should be the investigation. In this case, Roldan faced the possibility of deportation if she was dismissed (she was a Filipino) and hence the potential consequences were severe.
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If the investigation results in two witnesses saying different things, the employer is not required to decide to believe one and disbelieve the other. If there is no way of resolving the conflict, the employer could give the employee the benefit of the doubt.
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If the Employment Tribunal has applied the ruling of BHS v Burchell to its’ deliberations, and there is evidence to support its’ conclusion (and the decision is not perverse) its’ conclusion should not be overturned.