Unfair Dismissal: Dismissal Recommendation by External Consultant

Daniel Barnett: Is it fair for an employer to dismiss an employee on the recommendation of an external HR consultant? Potentially yes, held the EAT in GM Packaging v Haslem.

GM Packaging was a small employer with just 9 employees. Its managing director became aware of conduct by the Claimant (a senior manager), engaging in sexual activity with a member of his staff on company premises after hours.

It delegated an external HR consultant to advise on whether dismissal should take place. Following an investigation the HR consultant recommended dismissal and the managing director accepted this recommendation. When the Claimant appealed, this was also delegated to a HR consultant and the appeal was rejected.

The employment tribunal held it was fair and reasonable to delegate matters to a HR consultant but found that the principal reason for dismissal, in the managing director’s own mind, was purely the sexual activity on company premises. It considered that this was not gross misconduct and that dismissal was outside the band of reasonable responses.

However, on appeal, the tribunal decision was overturned. First, all constituent parts of the reason of ‘conduct’ were relevant to the reasonableness question and not just the principal act of misconduct. The HR consultant, whose recommendation was relied on, had also taken into account derogatory remarks made by the Claimant about his employer.

Secondly, dismissal for sexual activity with a member of staff on the company’s premises after hours accompanied by a conversation which revealed a complete lack of respect for the employer was within the band of reasonable responses. The employment tribunal had erred by substituting its own view of that employer as to the reasonableness of the sanction of dismissal.

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