Summary: Is it fair for an employer to dismiss an employee on the recommendation of an external HR consultant?
Yes it can be says the EAT in GM Packaging (UK) Limited v Haslem.
Facts: GM Packaging is a small employer with 9 employees. Its Managing Director became aware that the employee, the General Manager, was engaging in sexual activity with a member of staff on company premises after hours.
GM Packaging contacted external HR consultants and instructed them to investigate the alleged sexual act. Following an investigation, the HR consultant recommended dismissal and the Managing Director accepted this recommendation. When the employee appealed, this was also delegated to an HR consultant and the Managing Director accepted the recommendation that the appeal be dismissed.
The employee brought a Tribunal claim for unfair dismissal. The Tribunal held it was fair and reasonable to delegate these matters to an 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.
The EAT overturned the Tribunal’s decision. All parts of the reason of ‘conduct’ were relevant to the question of whether dismissal was reasonable 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 employee about GM Packaging. Furthermore, 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 EAT felt that the Tribunal had erred by substituting its own view of as to the reasonableness of the sanction of dismissal.
Implications: The case reconfirms that external advisers (whether they be HR consultants or otherwise) to an employer can, with authority, make decisions that are binding on the employer. Also when considering the reason for dismissal, a Tribunal must look at all the evidence that made up the decision to dismiss an employee and not just part of it.