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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 30 MAR 2015

Admissions of misconduct and the test of reasonableness

Admissions of misconduct and the test of reasonableness
Nick Murrell
Solicitor, Veale Wasbrough Vizards

A recent Employment Appeal Tribunal (EAT) decision has found that, in certain circumstances, an employee's admission of misconduct will mean they can be fairly sanctioned (and in some instances dismissed) without the need for further investigation.

In CRO Ports London Ltd v Wiltshire, Mr Wiltshire was employed as a supervisor by CRO Ports London Limited (CRO). Mr Wiltshire was suspended after supervising the lifting of a shipping container by crane in which the team leader overrode a safety sensor. Overriding this sensor was a common practice used by CRO workers, albeit dangerous and in breach of health and safety rules. On this occasion the container fell from the crane from a height of 20 feet. The container was badly damaged as a result and it was widely accepted that the incident could have been very serious if anybody had been below.

At a disciplinary hearing, Mr Wiltshire admitted full responsibility for the accident and accepted that overriding the sensor was dangerous. Mr Wiltshire made the admission in the belief that his clean and loyal employment history with CRO would protect him from any serious reprimand. At the same time, Mr Wiltshire disclosed that he had previously breached health and safety rules by handling similar situations in the same way. Mr Wiltshire was subsequently dismissed for gross misconduct.

The disciplinary officer took the decision to dismiss Mr Wiltshire on the basis that he had admitted and condoned the unsafe practice. No further investigation was made.

Mr Wiltshire subsequently bought tribunal proceedings for unfair and wrongful dismissal. The Tribunal upheld the claims. It found that CRO had not undertaken a reasonable investigation and if it had, it would have identified that the unsafe practice was caused by the considerable pressure put on workers, that workers were not given any specific health and safety advice for these situations and that CRO effectively condoned the practice by its use over a period of many years.

CRO appealed, arguing that the Tribunal had failed to apply the correct legal tests in relation to unfair dismissal and wrongful dismissal. The EAT upheld the appeal on all grounds. In relation to the unfair dismissal claim, it held that the question was whether CRO had acted within the range of reasonable responses of the reasonable employer in limiting the scope of its investigation, in the light of the admissions made by Mr Wiltshire.

The EAT concluded that it was hard to see why it was not within the range of reasonable responses for CRO to conclude it was unnecessary to carry out further investigation. The EAT stated that the Tribunal had drawn its conclusions about what would have been discovered had the employer undertaken further investigation based on its own findings, rather than the evidence before the employer at the time that the decision to dismiss was made. Due to this, the Tribunal had failed to appreciate the significance of the admissions made by the employee at the time. The case was remitted for a fresh hearing.

Best practice

This case will be important to employers when considering how to deal with an employee's admission of misconduct. Each case should be assessed on its facts and employers should consider whether any admission makes further investigation unnecessary, or whether there are unresolved issues which mean additional investigation is still required.

Alternatively, employees who are contemplating making admissions of misconduct should ensure that they give thought to the circumstances and purpose of their admission before doing so. In particular, if there are pertinent facts which may explain or mitigate the misconduct, an employee would be well advised to present any admissions in this context.

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