The decision of the Employment Appeal Tribunal in RBS v Donaghay has clarified a question which may not be obvious at the inception of disciplinary proceedings but often emerges in the course of the process: if an employee is to be dismissed for misconduct, does that conduct need to be what would be generally regarded as "reprehensible"? There is also a chain of case law which makes the question relevant in such circumstances.

According to the Oxford English Dictionary "reprehensible" means "deserving censure or condemnation".

As an aside, the summary of the judgment posted on the Employment Appeals Tribunal website includes the word "esto" which is an obscure Scottish legal term (the employment tribunal was in Glasgow) and means "a technical term used in written pleadings used to introduce a secondary line of defence which accepts, only for the sake of argument, facts which are still disputed in the primary defence".

After a little diversion to deal with semantics, Mr Donaghay was a customer services adviser who was in a relationship and lived with another RBS employee, known in the proceedings as "LC". The facts of the case are set out in the decision:

"On Saturday 3 January 2009, the Claimant went out drinking with friends whilst LC remained in the flat. He returned late in the evening or in the early hours of 4 January. An argument took place between the Claimant and LC which culminated in him admittedly pushing her so as to cause her to fall onto the sofa. He then left but, having done so, tried to get back into the flat and caused a disturbance by shouting, swearing and kicking the front door so as to force his way back into the flat. He then left the building but returned shortly thereafter to find that the police were in attendance. He was detained by the police, subsequently charged with assault, vandalism, and breach of the peace and kept in police custody overnight. He appeared in Glasgow Sheriff Court on Monday 5 January and was released on bail on the standard bail conditions plus a special condition (which is common in such circumstances) that he refrain from approaching LC or the flat.

"The Claimant alleged that, prior to him pushing LC onto the sofa, she had slapped him and scratched his face. He made no complaint to the police about that when he was detained and charged. He subsequently, on a date around the last week of March 2009, made a formal complaint to the police concerning LC’s conduct towards him on the night of 3- 4 January. The police took no action in relation to his complaint."

As a result of these events he was interviewed by his line manager and suspended. LC was interviewed and said that she would not be comfortable in the claimant’s company either outside or at work.

He was charged with assault and disorderly behaviour and pleaded not guilty. Pending the hearing he attended at his place of work to deal with issues concerning his bank account. He was spotted by LC who reported his attendance to the police. On attendance, the police informed the branch manager that Mr Donaghay had breached his bail conditions.

Disciplinary proceedings were commenced, conducted by Les McNabney:

" In the course of the meeting the Claimant admitted having pushed LC onto the sofa and to having kicked the door, which he regretted. He said that his actions towards LC were in "self defence" as she had slapped him. There was also discussion of the Claimant having attended at the St Enoch Square branch and Mr McNabney observed that the "commonsense thing" for him to have done would have been to stay away from that branch of the bank. The Claimant advised that the vandalism charge had been dropped. Regarding the alleged breach of bail, he said that the police saw nothing amiss; he was not charged with breach of his bail conditions. Mr McNabney was not provided with a copy of his bail order."

Mr Donaghay was dismissed. No account was taken of the alleged vandalism or breach of bail. However the admitted assault showed that he was a risk. At trial he denied assault and admitted breach of the peace. He was convicted for breach of the peace.

On appeal against dismissal when asked why, on the facts, only he was arrested he said "It is always the male". Ms Moultrie, who conducted the appeal, also said that she "found his behaviour quite threatening in the course of the hearing".

Remarkably, the employment tribunal embarked on an exercise to establish whether Mr Donaghay’s actions in the initial incident were indeed in self defence and concluded that they were. As pointed out on appeal, that would not necessarily negative culpability of an assault. The tribunal found that Mr Donaghay was unfairly dismissed because the conduct leading to dismissal was not reprehensible.

On appeal it was emphasised that a dismissal based on conduct does not require the conduct in question to be of any particular character, let alone that it should be "reprehensible"

Lady Smith summarised the correct approach as follows:

" In particular, the Tribunal misdirected itself regarding the meaning of ‘conduct’ in terms of s.98(2) of the 1996 Act. It is for the employer to show that the reason for dismissal was one of the reasons specified in that subsection. There is, however, no requirement that the conduct in question be reprehensible before the employer can be shown to have established that dismissal was for a potentially fair reason. Anything that an employee does or fails to do is ‘conduct’ under s.98(2) and dismissal for a reason relating to that conduct may or may not be fair, depending on the application of s.98(4).

Whilst it is likely that the more reprehensible the conduct, the greater the likelihood of the dismissal being found to be fair, the conduct does not need to be reprehensible before the employer can be found to have discharged the onus on him and attention turned to the test in s.98(4), at which stage, he does not bear any onus. That, however, was the Tribunal’s approach and it was wrong."

It followed that the dismissal was fair and the claim was dismissed in its entirety. The claim of sex discrimination (based on the fact that the employer had acted on the basis of a sexual stereotype) had to be rejected because there was not an appropriate comparator and, in any event, the facts did not support such a claim. In a pithy conclusion Lady Smith found that: "A hypothesis constructed by the tribunal or by the claimant is not, plainly, "evidence"."