Unfair dismissal: Dismissal of over-authoritarian manager was unfair because he had not been told that a failure to change his behaviour might lead to dismissal

This report relates to 1 case(s)

In JJ Food Service Ltd v Kefil [2013] IRLR 850 EAT, the EAT upheld an employment tribunal's decision that a manager who had received no training following an informal warning about his management style, and was not told that he might be dismissed should his behaviour persist, was unfairly dismissed.

Key points

  • In finding that an employer's decision to dismiss an employee because of his management style fell outside the range of reasonable responses, an employment tribunal had not substituted its own decision for that of the employer or acted perversely.
  • The tribunal noted that, although the employee had been informally warned about his management style in July 2010, he had not at that time received management training; nor had it been made clear to him that a repeat of such conduct could lead to dismissal.
  • The issue in such cases "is whether the employee has sufficiently been told or should sufficiently have realised that behaving as he did would or might lead to his dismissal".
  • The fact that the employee had not been told of such consequences and had received no management training to address his deficiencies led the tribunal to conclude that the decision to dismiss fell outside the range of reasonable responses and was accordingly unfair.

Once an employer has established that an employee was dismissed for purported misconduct, the tribunal goes on to consider whether or not the employer had a genuine belief in the misconduct, which was held on reasonable grounds following a reasonable investigation. The final stage is whether or not the decision to dismiss fell within the range of reasonable responses available to an employer in those circumstances. In this case, the Employment Appeal Tribunal (EAT) addressed whether or not a tribunal was correct to find that dismissal was not a reasonable option for the employer because the employee was not aware of the possible consequences of his behaviour.

Facts

JJ Food Service Ltd is a "major distributor in the food industry". Mr Kefil had worked for the employer for 14 years, including as warehouse manager and latterly as stock control manager. During that time he received one informal warning by way of a letter dated 1 July 2010 drawing attention to deficiencies in his management style. He had received no other warnings.

In April 2011, three staff members wrote a letter of complaint to the employer. The letter (which was signed by 10 others) made particular complaints about the warehouse manager, Mr Sitki, but also made some complaints about Mr Kefil who, it was said, acted with Mr Sitki in some respects.

Interviews with the signatories revealed that most of the complaints about Mr Kefil "were general in nature", alleging "mistreatment" of his subordinates. It seems that, although some specific dates were cited in respect of unfair treatment, the "allegations were not generally tied to any specific date or time".

Following a disciplinary hearing, the employer found the case against Mr Kefil proved in part. In a letter dated 23 May it stated that he had "evidently abused [his] position as stock control manager to threaten employees' job security which ... created an intimidating environment for [his] subordinates". He was also criticised for communicating in Turkish in the presence of some employees who did not understand the language, thereby putting those employees at a disadvantage. The employer categorised Mr Kefil's behaviour as gross misconduct, which would normally result in summary dismissal. However, in the light of his service, the employer offered "demotion on a substantially reduced salary and in a substantially reduced capacity". His appeal was dismissed. Although it is not stated explicitly in the judgment, it appears that he rejected the demotion option and considered himself to have been dismissed. He instituted proceedings for unfair dismissal.

Tribunal decision

The tribunal found that "the sole reason" for Mr Kefil's dismissal "was the manner in which he had acted as a manager of the staff of the warehouse". The tribunal was satisfied that the employer genuinely believed that he was guilty of misconduct and "accepted hesitantly that there were reasonable grounds for this belief and that the investigation had, taken as a whole, been reasonable". However, it decided that the dismissal was unfair because the decision to dismiss fell outside the range of reasonable responses. In arriving at this conclusion, the tribunal noted that the 1 July 2010 letter, which "was at most an informal warning", did not indicate that if Mr Kefil persisted in his management style he might be dismissed; nor had he received any management training "at that time to remedy his perceived (and probably actual) deficiencies". The tribunal further observed that the letter of complaint in April 2011 focused primarily on Mr Sitki rather than on Mr Kefil. It held that, in those circumstances, dismissing Mr Kefil "without having warned him formally that his management style had to change", failing which "he might be dismissed", and "especially" having failed to provide any management training after the letter of 1 July 2010, fell outside the range of reasonable responses and was accordingly unfair.

The employer appealed.

EAT dismisses appeal

The employer argued that the tribunal had erred in law by substituting its own decision for that of the employer. It submitted that the tribunal had downplayed the offences of which Mr Kefil was guilty by euphemistically describing them as "management style".

The EAT observed that it is "all too easy" for employers "who do not like the result which a tribunal has reached but cannot go so far as to say it is necessarily perverse" to allege that the very fact of the result, in the circumstances, must indicate a "substitution mindset" on the part of the tribunal. In assessing whether or not, once the employer had established the reason for dismissal, the tribunal went beyond the scope of its duty under s.98(4) of the Employment Rights Act 1996 to consider whether the "decision to dismiss for that reason was fair or unfair", the EAT had to look for some indication that the tribunal had asked what it would have done in the light of the basic and underlying facts rather than asking whether or not what the employer did was fair.

Adopting that approach, the EAT found no evidence that the tribunal had substituted its own decision. Apart from the employer's "surprise ... at the overall conclusion", the only basis for suggesting substitution was the alleged downplaying of the employee's offence. The EAT rejected this criticism, finding that the tribunal's description of the sole reason for the employee's dismissal was "an appropriate synopsis" of the relevant material.

The employer also contended that the tribunal's decision was perverse in that no reasonable tribunal could have arrived at such a conclusion. It conceded that the 1 July 2010 letter was an informal warning, but submitted that an experienced manager such as Mr Kefil "must have been fully aware" that he was liable to be dismissed if he continued to tell "employees that they might lose their jobs" unless they did as he insisted. The conduct of which he had been found guilty was clearly gross misconduct, asserted the employer.

With regard to the employer's disciplinary process, which usually envisaged a progression of warnings leading to a final written warning, the employer relied on previous EAT authority in McCall v Castleton Crafts [1979] IRLR 218 EAT to the effect that "there is no special magic about a written warning" and that, although a written warning is advantageous for evidential purposes, "to an intelligent man a verbal warning should be just as effective". In the instant case, the employee "had received a shot across the bows" and "must have known that if he behaved as he did he was committing an act of gross misconduct which would justify his dismissal".

The EAT noted that the tribunal "was particularly well constituted" to assess whether or not the dismissal fell within the range of reasonable responses, "being a tribunal of three and containing lay members appointed from both sides of industry". The tribunal focused on the fact that, although the employee "had behaved in an over-authoritarian manner", he "had not been trained how to manage". In those circumstances, the tribunal thought it "only fair for him to have" been warned not only that he should stop doing what he was doing but also that, if he did not stop, "he would be dismissed for it".

Although the EAT noted the employer's points about warnings, this case was different from McCall, where, despite the lack of a written warning, the employee was found to know "full well that he was contravening a rigid requirement" of his employer about which he had been verbally warned on several occasions. In the instant case it was the lack of a warning about the possible consequences coupled with the fact that Mr Kefil had received no training that led the tribunal to find that the decision to dismiss fell outside the range of reasonable responses and was therefore unfair. In arriving at this conclusion, the tribunal had not seen the employee through "rose tinted glasses" and had sometimes "been less than complimentary" about his behaviour. However, it plainly felt that it was important for an over-authoritarian manager ("not unknown in industry") to understand clearly (by way of a warning if it is not otherwise clear from the circumstances) "that repeat of that conduct might lead to ... dismissal".

The EAT dismissed the employer's appeal.

Comment

It is, of course, no surprise that the dismissal was found to be unfair when the employer jumped straight to dismissal as a sanction without making it clear that this would be the consequence of the employee's behaviour and without giving him a chance to improve his behaviour, or indeed provide any training, which might have helped him to do so.

Of particular interest in this case, however, is the sceptical way in which the President of the EAT treated the argument that the tribunal had substituted its own view for that of the reasonable employer. Mr Justice Langstaffe said that this ground "was all too easy to allege" and made it clear that appeals of this type should succeed only where the indication is that the tribunal has not asked if what the employer did was fair, but what it would have done in the same situation. While this is not new, it does show rather more reluctance to entertain such appeals than we have seen in recent years and is indicative of an approach that is more respectful of the conclusions of the tribunal than perhaps we have seen from the EAT in recent years.

Another interesting remark made by the EAT is that the tribunal was "particularly well constituted", being made up of three members and containing lay members from both sides of industry. Since April 2012, the default position is for employment judges to sit alone in unfair dismissal cases. Is the EAT hinting that decisions on the range of reasonable responses will have less weight when a judge sitting alone has made the finding rather than a tribunal including lay members? If the EAT proves to be more willing to intervene in cases where a judge has sat alone, this is bound to lead to more requests for unfair dismissal claims to be heard by lay members. It will be interesting to see how this issue develops.