02/06/2025
A client sat across from me, clear about what action they wanted to take.
An employee had made a remarkâone that another colleague had complained about. Technically, it amounted to discrimination (harassment), which is something that could be classified as gross misconduct.
For the employer, the decision seemed obvious. The employee should be dismissed. A clear message needed to be sent.
But as the conversation unfolded, it became clearâthe frustration wasnât just about the remark. This employee had been underperforming for some time, and the employer saw this as an opportunity to finally let them go.
This was someone with long service, no previous misconduct issues, and cruciallyâsomeone who had never received any training on discrimination. The remark was inappropriate, yes. But was dismissal the only reasonable response?
I always strive to help clients achieve their desired outcomesâbut I also strive to help them make decisions that are legally sound, ethically fair, and defensible.
đ A tribunal wouldnât just look at the incidentâit would assess whether dismissal was truly a reasonable response.
The band of reasonable responses is a test of whether an employerâs decision would be considered fair by other reasonable employers in the same situation. Dismissal was within that band, but would a warning, further training, or another approach also be reasonable?
Tribunals weigh:
â Severity â Was the misconduct serious enough to warrant dismissal?
â Consistency â Have other employees been treated the same way in similar cases?
â Fair process â Was the investigation thorough, and did the employee get a chance to respond?
â Proportionality â Did the employer consider less severe actions before deciding on termination?
A rushed dismissal can result in a successful unfair dismissal claim, especially if underlying performance concerns were a motivating factor as well as the misconduct itself.
As an employer, the decisions you make today donât just impact this one caseâthey set the precedent for how your workplace handles future concerns. A fair, consistent approach strengthens trust and protects your business.
Of course, every client has varying appetite for risk, and ultimately, decisions lie with them. And after speaking about the fact that there would be an appeal process, this particular client decided to progress with dismissal (although relying on the appeal process to âfixâ a flawed initial decision can be a gamble for a number of reasons which I won't go into here!).
â Before making a quick dismissal decision, ask yourself: Would this stand up to scrutiny if challenged?
đ Or speak to someone with experience, like me! đ