Reasonable but wrong?

Many areas of employment law rely on the idea of a ‘reasonable belief’.   A reasonable belief does not have to be correct.  I may quite reasonably believe something that turns out not to be the case.

 

An employer who is trying to determine whether a gross misconduct offence (such as theft or gross negligence) took place does not have to establish beyond reasonable doubt that the event took place and the individual they discipline is responsible.  Employers have to show that they reasonably believed this to be so.

A reasonable belief is arrived at after a robust process which means:

  • The individual whose job is at risk knows what they are accused of and has an opportunity to comment
  • The investigation is not tainted by prejudgement or bias
  • The decision is made having taken into account the individual’s explanation
  • There is a right of appeal

An employer who believes a theft to have taken place would be on thin ice if they could not show any goods or money had gone missing, but it is not necessary to conduct a criminal style investigation with a view to proving who is responsible.  Employers can make up their minds on the basis of the facts they have before them.  That can include, in certain limited circumstances, dismissing two or more individuals if they cannot determine (after effort) which one is responsible for the act.

The ‘reasonable belief’ is arrived at as a result of a ‘reasonable method’.

There is no room here for a faith- based type of belief – telling a tribunal that a minor deity told you who was stealing from you is not likely to impress, however profound your personal belief system might be.  There is not much room here either for ‘gut feelings’.  Managers will need to go beyond ‘a feeling’ and produce some logical reason that connects an individual with an event (and makes it something they are responsible for).

Gut feeling will be a reason to investigate, but it is not an investigation.

It is easy to get caught up in disciplinary investigations and forget to look outside our current thinking.  What seems reasonable and self evident to us, at midnight having worked three days on a problem, may seem far from obvious or rational in tribunal a few months later.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

8 Comments

Filed under discipline and dismissal, employment law, employment tribunal

8 responses to “Reasonable but wrong?

  1. mario

    my employer sacked me for gross misconduct because i did not want to be transfer to another unit. This transfer was the conclusion of an internal investigation about money dissapeared from a safe. I take them to an employment tribunarals and they said they had reasonable belief that i stole the money. this is not the case but how can they offer me the same position in another unit if they got reasonable belief i done it? does it make any sense?

    • On the face of it, it does not make sense. Without seeing the full decision of the tribunal it is impossible to figure out what they thought or why they thought it. Was the issue of a transfer to another unit actually dealt with at the tribunal? Was their evidence about this and did you or your representative raise this point at the hearing?

  2. one of my very first case at an employment tribunal was represnting a claimant who had been accused of gross misconduct and although it was proven eventually that my client was not guilty of the said allegation, the judge though sympathetic drew me to the three test principle and concluded that even if he believed that my client was not guilty of the offence in question, the judge was stuck…due to the “reasonable test” whether the employer at the time had a reasonable believe that this actually happened and the steps and investigations carried out at the time.

    • Thank you for commenting. I hope your first case was when all this was new.

      I am often suprised by how legally qualified and expert representatives get as far as tribunal on this issue. This issue is well known, goes back to the 1980s and no-one should be fighting a tribunal today on the basis that their client was not proven to be guilty of some gross misconduct offense.

      Whilst it can be difficult to explain to an individual that whilst they may be innocent of wrong doing that is not the correct test, it can save them a lot of expense and trauma if they know what the legal situatuion is from the outset.

      Of course if there are issues of prejudgement or other procedural issues that might have affected the reasonableness of the belief, that is different.

      Employers call that nit picking on process – claimants call that getting to have their say. Somewhere in the middle there is some kind of sanity if you know how to pick your way through.

  3. sian cole

    At present I am being disciplined at work due to a inappropriate comment i left on social networking site in which i did not mention the companies name but they are saying they have reasonable belief to think that i was talking about my place of work. I was previously file noted on alleged inappropriate behaviour which again was decided that there was reasonable belief that i had said something which someone else said that i said.

    • A reasonable belief is all an employer can have since unlike the police of the courts they cannot make anyone answer questions or get warrants to search people and premises. The belief though has to be formed after investigation and giving you the chance to respond. The belief has to be formed having gone through this process (not before) and you have to have the right of appeal.

      Ask them for a copy of the social media policy they issue. If they have given you one and you are in breach of it you are in a different situation to if they have not. Have a look at your contract and staff handbook. If there is nothing about social media you should read the sections around words like ‘bringing the company into disrepute’.

      If you do not put up on social media where you work (linked in and facebook let you do it but other sites don’t) and you didn’t name your boss or supervisor, then you are not bringing them into disrepute and their belief may not be reasonable. If it is all over social media where you work, the fact you didn’t name the company on this occasion may not help you. If there is no social media policy it does not matter that they believe you are talking about work since you are entitled to do it, what matters if whether you were saying something in breach of your contract or that damages their brand as an employer or service/product provider.

      Make sure you ask them exactly what term of what policy or your contract they are saying they think you breached.

      If you have less than one year’s service, whatever the rights and wrongs of it you are risking dismissal if you carry on. If you started after April 2012 you need two years service to claim unfair dismissal protection. It sounds as though either they have real doubts about you for no reason or that you are doing somethings that make them behave in this way. Is it possible that your definition of appropriate behaviour and theirs are completely different? Might it be a good idea to have some kind of conversation? If you want to keep your job it would be good to figure out what it is you are doing that they don’t like. If they are completely mad people you may want to find another one – but you need to be sure what is going on here. If, like many people, you have thought ‘they can’t prove it so I am in the clear’ you may be in for an uncomfortable ride.

      Don’t name your employer on line in this blog, but you might want to email advice@irenicon.co.uk and claim some free advice on the subject. Copy in what has gone before so whoever gets the mail can see where we have got to so far!!

  4. Hello my friend! I wish to say that this post is amazing, nice written and come with
    almost all significant infos. I would like to see more posts like this .

  5. Pingback: Reasonable but wrong? | Employment law in a mad...

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