Reasonable responses to employee behaviour

A recent Employment Appeal Tribunal draws attention to the issue of what is a reasonable response to an employer’s belief that an employee had acted dishonestly. 

The employee was a part-time worker who was claiming sick pay because she was unable to undertake the physical nature of her work.  Unknown to her employer she had another part-time job, with no conflict of hours, which she continued to be able to do.  She was dismissed for fraud in respect to the sick pay. 

The employee appealed, and although it was accepted that she was entitled to sick pay, the employer contested that there was still dishonesty because she had not requested permission to work for another employer, as stated in her contract.  

However the EAT found that the tribunal should have considered whether the dismissal was within the range of reasonable responses.  It concluded that the dismissal was unfair on this ground because there had been no loss to the employer and medical evidence confirmed her ability to perform one job but not the other.  The EAT concluded that it was a minor deception, not gross misconduct.

Finally, though, the EAT also attributed some contribution by the employee (30%) since she had not told her employer what she was doing, and may not have been dismissed if she had.

If you have any doubts about a disciplinary process, and the options open to you, Hardwick HR will be happy to offer advice.