Passing the buck? Dismissal recommended by external consultant was fair

For a dismissal to be fair, the employer must show that the reason for dismissal or, if more than one, the principal reason is one of the categories of potentially fair reason under the legislation (conduct, capability, redundancy and so on). The ‘principal reason’ wording is included to cover situations where the facts cover more than one potentially fair reason — both conduct and capability, for example. In addition, the employer must have acted reasonably in treating that reason as sufficient to justify dismissing the employee.

In GM Packaging v Haslem, the managing director of a small company asked an external HR consultant to advise on whether a senior manager who had engaged in sexual activity with a member of staff at the workplace, out of hours, should be dismissed. The consultant investigated and, taking into account derogatory remarks made by the claimant about his employer, advised the employer to dismiss. The employer followed the recommendation.

The tribunal held that although it was reasonable, given the size of the employer (nine employees), to delegate to the HR consultant, the principal reason for dismissal, in the managing director’s mind, was purely the sexual activity in the workplace. This was not gross misconduct and could not therefore justify dismissal…

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