In the case of Vaultex v Bialas the Employment Appeal Tribunal [EAT] overturned the initial Employment Tribunal (ET) decision of unfair dismissal as the EAT found that the ET had substituted Vaultex’s original disciplinary outcome for their own rather than considering whether or not the disciplinary decision reached by Vaultex was within the band of reasonable responses.
In accordance with s98 Employment Rights Act 1996, the dismissal of an employee in the workplace is only fair if it is for a potentially fair reason namely one of capability, conduct, redundancy, statutory illegality or SOSR.
In addition, the employer has to have acted reasonably in dismissing an employee, i.e. they followed an appropriate and fair procedure prior to reaching their decision.
In reaching any disciplinary decision relating to conduct as the potentially fair reason for dismissal, any employer would need to demonstrate that they have:
- Carried out a fair disciplinary process, such as carrying out a reasonable investigation, conducting a fair disciplinary hearing, offering the employee the right to be accompanied, offering the employee right to appeal the outcome of the process.
- Acted in accordance with the ACAS Code of Practice on disciplinary and grievance procedures.
- Considered all relevant factors of the case, such as the seriousness of the disciplinary offence, evidence obtained during the investigation process, any mitigation offered by the employee at the disciplinary hearing, whether or not their actions breached company policies and/or procedures and if the breach policy and/or procedures was so serious that a likely outcome of any disciplinary hearing could be dismissal/summary dismissal. Employee length of service, and any previous disciplinary record should also be taken into account. The Bialas case reinforces the importance of adherence to policies, i.e. the breach of the EDI policy could result in dismissal.
- Reached a decision that is within a ‘band of reasonable responses’ i.e. that any reasonable employer of the same size/resources would have reached the same decision.
In this case, Mr Bialas posted a comment as a ‘joke’ on Vaultex company intranet that all employees could access. A complaint was received from an employee that the ‘joke’ was deemed to be racist. The ‘joke’ was immediately deleted from the intranet site.
Mr Bialas was subject to disciplinary process as a result of the post and he was dismissed. Vaultex’s Equality, Diversity and Inclusive (EDI) policy had a zero-tolerance approach to such things that made it clear that any breach of the policy could result in dismissal.
The disciplinary chair in this case demonstrated that they had considered whether a lesser sanction, short of dismissal was appropriate in the circumstances, however, in light of the seriousness of the act and Vaultex’s zero-tolerance campaign, they felt they had no alternative but to dismiss Mr Bialas, regardless of his length of service and exemplary record.
Whilst many people may feel dismissal was a harsh decision (incidentally the original ET did and found that the dismissal was unfair) it was not an unreasonable decision as it was indicated as a potential outcome in Vaultex policy. The EAT pointed out that having considered Mr Bialas’ length of service, his exemplary record, and other lesser sanctions, the decision to dismiss was deemed as falling within the band of reasonable responses. ET had erred in their finding that the dismissal was unfair as they had substituted their own view rather than considering whether any other employers could have reached the same decision.
At ibex gale, we are proud to offer specialist, independent disciplinary hearing support and can conduct disciplinary hearings on behalf of employers in line with company policy & procedures and legal principles. If you have complex disciplinary, grievance or whistleblowing investigations we can carry out workplace investigations and have a number of excellent investigators with legal and HR backgrounds who excel at delivering high quality reports based on methodical and thorough workplace investigations.
Further, if you want to learn from ET outcomes, or have concerns regarding the number of claims or employee relations issues that your organisation is experiencing, we can help. Our team at ibex gale is also able to conduct lessons learned reviews, where we independently evaluate the robustness of your in-house workplace investigations, review ET outcomes, and provide recommendations on what could have been done differently.
For a confidential discussion, please get in touch with us at contactus@ibexgale.com or on 0117 251 0566.
Author: Kris Bell, Research Associate
