We all use words to conduct our daily life. If I could really see inside your head, I might find that what you associate with things such as ‘good’ or ‘wicked’ might be different to mine. Many teenagers use ‘wicked’ to describe something they like!
English employment law tends to use everyday words to describe some very specific concepts. An employment tribunal judge talking about ‘reasonable in the circumstances’ ( a key test of whether a dismissal is fair) will not necessarily be using ‘reasonable’ in the same way as a typical manager.
I doubt whether anyone has woken up and thought: “I will be unreasonable today and make decisions about my staff that make no sense whatsoever”. However rational (or irrational) our thinking might be, we naturally tend to believe that our actions and decisions were ‘reasonable’.
Employers are often bewildered when employment tribunals don’t agree with them! Many believe that tribunals are biased against them (just as employees often believe the opposite).
This is because an employer’s personal interpretation of reasonable (whatever that might be) is not based on the same concepts as an employment tribunal’s. A tribunal will be looking for a documented process to show how the decision made. This may often include what alternatives were considered and why they were rejected.
Managers can be extraordinarily reluctant to go through this process – feeling that however they arrived at their conclusion, it is a right one. HR can be very keen to document the mechanics – e.g. the minutes of a meeting, who saw whom and when, but can be very reluctant to offer any challenge to a manager who is going down an eccentric or dangerous track. As in any other decision making process, if the method of gathering data and evaluating it is defective, there is a very high chance the decision will be wrong. Sometimes we all need someone to say – “Hey – pay attention to that, it could be important” or “Are you sure this is really the key issue?”
Tribunals do not look at whether a dismissal decision was right or wrong, but whether it was ‘within a range of reasonable responses’. If the business can demonstrate a thoughtful process and can identify why other alternatives were not appropriate, it is rarely a problem to meet this test.
Aligning your decision-making process with what the business needs, and adding in a fair degree of self-challenge at each stage, will allow you to make appropriate decisions for the business without undue fear of legal challenge.
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/