A recent Employment Appeal Tribunal (EAT) case has highlighted an issue we frequently come across on our HR advice lines when a well-meaning employer deals with an employee informally, genuinely believing that this is the best way to tackle a bullish employee and that the employee will learn their lesson. However, more often than not it transpires not to be the case and the employer is then left to tackle the problem and often wants to jump straight to dismissal, which we at Alcumus generally would advise against doing.
The following case will no doubt sound very familiar to some of our clients and will re-iterate the advice you will have been given by your consultant even if it isn’t always the response you would like to have heard! However, the Employment Appeal Tribunal have confirmed that an employer cannot jump from an “informal” warning straight to a dismissal for the same or similar offence, just because the employer thinks the employee should have known better.
The EAT case of JJ Food Service Ltd v Kefil meant that the judging panel had to decide if it was reasonable to dismiss a manager with an intimidating management style, with no previous formal warning, on the basis that someone in his position should know that if he didn’t change his ways he would be sacked. They decided that it was not reasonable and therefore ruled the dismissal to be unfair.
Mr Kefil had been with the company for 14 years, and in 2010 he was informally warned about his management style not being acceptable, but no formal proceedings were followed and neither was any training or coaching offered. However in April 2011 10 employees complained about him and he was dismissed, as it was decided that he had abused his position by threatening employees’ job security, he had created an intimidating environment, and failed to set an example as a manager by not treating employees fairly. The employer viewed his actions as gross misconduct and terminated his employment on this basis, although the same unacceptable management style back in 2010 had only warranted an “informal warning”.
The EAT did recognise that Mr Kefil’s management style was unacceptable and were sympathetic to the employer, however the case fell down as the dismissal did not fall within the “band of reasonable responses”. Mr Kefil would have been able to argue that he was not aware that his conduct was bad enough to warrant being dismissed as he was not told this would be the case when he was informally warned about his behaviour. The employer could not rely on the unwritten rule of thinking that a senior manager “should know better” and that if he keeps on doing something wrong then, at his level, he automatically understands the consequences could be very serious. As in this case, informally warning the manager could lull them into a false sense of security, so the best advice is for the employer to make it abundantly clear that any repeat of such conduct could result in dismissal.