A Range of Reasonable Responses

What is the point of Unfair Dismissal?

On Monday I read a story that utterly depressed me. The BBC reported the case of Rachel Burns who was dismissed by Surrey County Council from her job in a care home for posting pictures on Facebook that included a vulnerable resident. This is not one of those posts where I pull apart the media reporting. It seems to me that the BBC account is pretty accurate – and is confirmed by the Tribunal decision.

When you read what Ms Burns did wrong I very much doubt that your reaction will be ‘well thank goodness that person can no longer work with vulnerable adults’. She shared a photo on Facebook of a happy occasion – a musical evening that she led at the care home where she worked.  No-one was harmed. No resident objected. In fact, by the time of the Tribunal hearing the resident in question had made it clear that he was quite happy for the picture to appear.

But Ms Burns had clearly acted in breach of the social media policy which did not allow the posting of text, video or photos that breached the confidentiality of residents. She accepted that fact and took the post down immediately. She was then suspended (why?) and taken through the disciplinary process. The employer concluded that such a breach of the policy would normally lead to dismissal but that they would on this occasion offer her redeployment to a much more junior post – at a much lower rate of pay. She took too long to make up her mind about that, however, and so she was dismissed with notice.

She had worked at this care home for more than 20 years and her career was over because she inadvisedly published pictures on Facebook of an event that showed residents of the care home enjoying a social event. Nobody thinks that she poses a danger to anyone. There is no reason to think that she will ever do this again. Nobody has actually suffered any harm or even anxiety except the employee herself. Why then must she lose her job? How can such a devastating – life ruining – penalty be appropriate or reasonable?

Now there are two sides to every story and the Council would no doubt argue about the fundamental importance of safeguarding vulnerable adults from breaches of their privacy or dignity. But what I find most enraging about this case is that in the whole of the ET judgment – it’s 18 pages long – you won’t find any discussion of that issue. The nearest you get is one line in paragraph 93 where the Tribunal says that proposing to demote her ‘was within the band of reasonable responses to the admitted misconduct’. There is no explanation of the basis of that finding and no discussion or consideration of whether the breach of policy was really so serious as to warrant dismissal.

Instead we get procedure; pages and pages of procedure. The Tribunal discusses the various hearings and adjournments and the conduct of the appeal hearing. It then concludes that on one very narrow issue the dismissal was unfair: the employer should have given her longer to think about accepting a more junior position.

The next step will be to decide remedy – and here Ms Burns is likely to be seriously disappointed. Instead of being compensated for everything she has lost in the past year and will continue to lose in the future, she is likely to be awarded only a token amount. There will be a deduction made for contributory fault – and since the Tribunal seems to think that demotion or dismissal was within the range of reasonable responses that is likely to be significant. Compensation will also reflect the Tribunal’s finding that there was ‘only a slim chance’ that she would’ve accepted the lower paid position.

Frankly, If I were the employer in this case I’d chalk it up as a technical defeat, but a practical win.  I might also regret the fact that a single and inadvertent breach of policy led to the loss of an experienced and valued employee. As it happens, however, the care home was already scheduled for closure by the time Ms Burns was dismissed and so her dismissal actually allowed the employer to save on its redundancy costs (although I should carefully record that the Tribunal rejected any suggestion that this fact lay behind the employer’s decision to take such a strict view of the employee’s misconduct).

Now of course Ms Burns could appeal against a major reduction in compensation – and I would think that her chances would be good. The range of reasonable responses test certainly skews unfair dismissal law in favour of employers – but it does not mean that Tribunals can ignore questions of substantive fairness altogether. Employers cannot simply rely on the fact that there has been a technical breach of a policy to justify dismissal. For a recent example see Arnold Clark Automobiles Ltd v Spoor in which the EAT upheld a finding of unfair dismissal even though the employee was guilty of gross misconduct. That fact did not mean that the employer was entitled to disregard the employee’s long service and the surrounding circumstances of the case.

But what would winning the appeal actually achieve? The most likely outcome would be that the case would be sent back for re-hearing. Ms Burns would have to go through the whole process again – and still would not be guaranteed a substantive win. By then it would be over two years since her dismissal. Frankly I’d probably advise her not to bother – it just isn’t worth the extra grief.

Even accepting that this decision is flawed, it strikes me as a good example of what is wrong with unfair dismissal law. The law has become fixated with policies and procedures to the point where it is essentially a bureaucratic right – looking at how the employer has gone about the process rather than asking fundamentally whether it was right for the employee to be dismissed. This is bad for employers and employees. It is bad for employers because it can tie them up in red tape even where the case for dismissing an employee is compelling – and it is bad for employees because an employer who drafts clear policies and is good at following procedures has a pretty free hand in deciding whether or not to dismiss someone. Even winning the case is often a hollow victory because the remedies are so limited.

I’m increasingly of the view that the right not to be unfairly dismissed is not really worth the volumes of case law and legal commentary devoted to it. If I had my way I’d scrap the whole thing and start again.