Was relying on an anonymous witness outside the ‘range of reasonable responses’ in dismissing an employee?
Not in Tai Tarian v Christie.
A tenant reported that an employee of a housing association made homophobic comments towards her. The tenant was interviewed by two managers, however requested anonymity and was not interviewed by the decision makers in the disciplinary investigation. The employee was subsequently dismissed.
In the first instance, the Employment Tribunal held that the dismissal was unfair due to the reliance of an anonymous witness being outside the ‘range of reasonable responses’, stating that this impacted upon the employee’s right to a fair hearing.
However, the Employment Appeal Tribunal disagreed. They stated that the Employment Tribunal had no logical or substantial grounds to believe that the Respondent could not have reasonably accepted the tenant’s evidence as true.
Further, the Employment Appeal Tribunal held that there was no unreasonable refusal of the tenant to provide evidence during proceedings.
Where an undertaking is fragmented upon transfer, can employees assigned to that undertaking be transferred to multiple transferees?
Yes, held the Court of Justice of the European Union in ISS Facility Services NV v Sonia Govaerts & Atalian NV.
Where a business transfer involves a number of transferees (the ‘new’ employers), the rights and obligations arising out of the employment contract of the individuals assigned to the undertaking may be transferred to each of the new employers, in proportion to the tasks performed by the individuals subject to:
- The contract being capable of division; and
- There being no worsening of working conditions or adverse impact upon the individual’s rights.
Where the above are not met, the ‘new’ employers will be liable for any consequence of the termination of employment, even where this is initiated by the employee.
Did the absence of any procedure, including an appeal, amount to an unfair dismissal after a breakdown in working relations?
Interestingly, no, held the Employment Appeal Tribunal in Gallacher v Abellio Scotrail.
After a series of incidents in which the relationship between the Claimant and the Respondent significantly deteriorated, the Claimant was dismissed at an appraisal meeting. No procedure was followed in carrying out the dismissal, including no forewarning or right of appeal.
The Employment Appeal Tribunal upheld the Employment Tribunal’s decision that, despite the absence of a procedure, the dismissal was fair, noting that a procedure would have made the situation between the parties worse.
The unusual circumstance of the case highlight, in rare situations, procedures may be reasonably considered to be futile. However, the Employment Appeal Tribunal confirmed that dismissals without any procedures will always be subject to extra scrutiny in the Employment Tribunal, providing a warning to employers seeking to rely upon this ruling.