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Getting Dismissal Right
If previous warnings have been given and it is appropriate in the circumstances to rely on those warnings, employers should always state in the dismissal letter that those warnings were taken into account when reaching the decision to dismiss.
That is the lesson from the recent EAT case of Nijary v Aramark Ltd, in which a Hospitality manager had been summarily dismissed for gross misconduct. Following an internal appeal, the employer relied on a single failure of the employee to justify the dismissal. The Employment Tribunal found that summary dismissal would be outside the range of reasonable responses for that one incident but went on to find that because the employee had previous warnings for similar circumstances, dismissal was within the range of reasonable responses and the dismissal was therefore fair.
The EAT did not agree with the Employment Tribunal and found that the reason for the dismissal is the actual reason(s) the employer had for the dismissal and not other reasons which would have otherwise justified dismissal. Therefore, it was not open to the Tribunal to supply an additional reason which the employer had not relied on at the time.
Although the employer could argue that Nijary contributed to his own dismissal and that the award should be reduced accordingly, it would be better to avoid a finding of unfair dismissal in the first place.
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