Dismissal must be a reasonable response

Posted: 13th September 2011

The employee in this case was employed by two different NHS Trusts, in different jobs, working different hours. One of the jobs involved travelling whilst the other was based in a clinic.

The employee developed a chronic knee problem which resulted in her being signed off sick in relation to the job that required her to travel. However, she continued to work in the clinic based job since that job did not require her to be mobile.

When her employer, Imperial, found out that she was continuing to work in the clinic based job it dismissed her for gross misconduct on the basis that she had defrauded it by claiming sick pay. She appealed against the decision to dismiss and Imperial, realising that the decision to dismiss her for fraud was unsupportable, confirmed her dismissal on different grounds, namely that she should have informed them that she was capable of work that did not involve travelling so that they could have redeployed her.

Unfortunately, the EAT did not decide the interesting question of whether or not the appeal panel was entitled to dismiss her on entirely different grounds from the original decision to dismiss. However, it did find that there were no grounds on which the appeal panel could justify a dismissal because, in the circumstances, the decision to dismiss did not fall within the range of reasonable responses. Accordingly, the dismissal was found to be unfair.

Case reference: Miss A Perry v Imperial College Healthcare NHS Trust

Employers should always take legal advice before making a dismissal or taking action short of dismissal. Any decision to dismiss must be reasonable taking into account the relevant facts of the case.