burden of proofdisciplinary hearingsdismissal by employeremployment lawevidencegross misconductmanner of dismissalmisconducttermination of employmentunfair dismissal

Last night, I watched the middle half of The Dark Knight Rises (the final Christian Bale Batman movie). It wasn’t planned and we didn’t even finish the move as it was part of a social evening with guests which ended in a random film to half chat over.

However, there was one scene which caught my attention. Catwoman is on a rooftop surrounded by loads of men with guns and, suddenly, Batman appears to help her.  Obviously, shots are fired and, in disarming one guy, Catwoman goes to aim the gun at another person, when Batman knocks it out of her hand and in his gruff voice says: “NO GUNS”.  Not especially helpful when everyone else has a gun but, in the true movie fashion, Batman and Catwoman escape miraculously unharmed.

Weirdly, but bear with me here as I’m a bit of an Employment Law aficionado, it reminded me of the legal beartrap of an employer coming to the right decision (i.e. a written warning or dismissal) but by the wrong route (i.e. without following a fair process). So, the Batman film scene posed as a demonstration of doing the right thing (i.e. preventing an unarmed woman being killed by gunfire) in the right way (i.e. without murdering them by gunfire back) even though that approach made things more difficult in the short-term.

Nearly every employer nowadays has a written Disciplinary Policy.  This states, sometimes in great detail, the process an employer must follow then there is alleged misconduct by an employee.  Sometimes, however, especially where the employer thinks a situation is a ‘slam dunk’ (i.e. the employee was caught racially abusing a customer by their store manager), management wish to shortcut (or ignore) the process because the outcome is ‘obvious’.

Unfortunately, however, in the same way that Batman shooting enemies dead and going on a murder spree would be hypocritical concerning his ‘no gun’ (and ‘hero’) mentality, it would also be fairly hypocritical for an employer to ask for ‘fair’ behaviour by staff and then largely ignore their own written policies.

Because of this, it is possible for an employer to have a fair reason for dismissal but for it to be classed as an Unfair Dismissal by a Tribunal because of unfair process. Let’s look again at that example of a manager witnessing a store assistant appearing to racially abuse a customer.  Let’s imagine that the manager fired the individual on the spot without asking him to explain himself, without suspending him nor inviting him to a disciplinary meeting.  Instead, the manager literally sacks him on the spot in front of the customer, tells him to leave the premises and never come back.

That employee has good prospects of obtaining an Unfair Dismissal Judgement against the employer at Tribunal, not because of unfair reasoning (because racially abusing a customer is likely to be classed as gross misconduct absent exceptional mitigating circumstances) but because they didn’t give the chance for the employee to put forward any potential mitigating circumstances first (i.e. did the individual racially abuse them first?  Did the individual physically assault the staff member beforehand?  Did the individual have a past history with the staff member and come into the store to try and get them into trouble?)

Whilst perhaps unlikely, these are possible and, without following a fair legal process, the mere fact that the employee wasn’t given the chance to put forward potential mitigating comment is likely to result in a successful Unfair Dismissal claim.

Now, there is a question mark over whether a claim brought by the employee above (if, for example, there were no mitigating circumstances) would result in much actual compensation for the employee, but that is a subject for another time.

For now, let’s just conclude that, ironically enough, once he hangs up his mask, Batman could well be cut out for a decent career in HR…