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Contents

Unfair dismissal protection Hitt again
Does justice delayed mean justice denied?
Robin Thompson: trade union lawyer
Developing a charter of workers' rights
Whistle blowing: follow the tune
Source of confusion  

Unfair dismissal protection Hitt again

Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588

In the recent case of Sainsburys Supermarkets Ltd v Hitt the Court of Appeal have clarified, beyond doubt, the scope of the reasonable responses test in unfair dismissal cases. It permeates every aspect of the test.

At the heart of issue of employment protection is the question of the function of the Employment Tribunal in judging employers' behaviour. The more rigorous the role, the greater the likelihood of an employee succeeding in their claim. For this reason trade unionists have long objected to the 'range of reasonable responses' in unfair dismissal cases which prevents a Tribunal asking itself if it would have dismissed an employee, but merely whether the employer's actions were within the band of responses open to a reasonable employer. If the option of dismissal was within the band, the dismissal will have been fair.

But the concept of unfair dismissal is more complex than that - it involves a number of stages and considerations. The employer must show a potentially fair reason to the Tribunal before a consideration of whether dismissal was fair in any particular case. The issue in Sainsburys Supermarkets Ltd v Hitt was whether the reasonable responses test is considered only at the stage of considering whether it was reasonable to dismiss for a given reason, or whether it applies also to the investigation into the suspected misconduct (or whatever the reason might be). The position was unclear enough from the earlier cases for the Court of Appeal to set it all out in detail and in very clear terms.

In this case Mr Hitt was suspected of theft. A missing box of razors was found hidden in Mr Hitt's locker. It was accepted that Mr Hitt had the opportunity to take them. He denied that he had, and said they must have been planted on him. The bakery manager also had a key to Mr Hitt's locker as did others. The Employment Tribunal concluded that there had been inadequate investigation. Sainsburys should have investigated all their staff with a key fitting Mr Hitt's locker who could have been near his locker at the relevant time. Sainsburys should also have ascertained the whereabouts of the bakery manager at the time of the theft to eliminate the possibility that he had put the razor blades in Mr Hitt's locker. Without a full investigation into those matters, the dismissal was unfair.

The Court of Appeal has overturned the decision. The Tribunal had substituted their opinion as to what was a reasonable and adequate investigation with their own. They should have applied the objective standard of the reasonable employer as to what was a reasonable investigation.

The range of reasonable responses test - alternatively described as the need to apply the objective standards of the reasonable employer - applies both to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances and well as to reasonableness of the decision to dismiss. The Court of Appeal held that on this analysis, the only conclusion which a reasonable tribunal could reach is that the investigation was reasonable.