Unfair dismissal 369tribunal will ask whether a reasonable employer could have acted in the same way as
the employer who dismissed the employee. If the tribunal objectively considers that a
reasonable employer could have acted in the same way, the dismissal will not be unfair.
This test seems very favourable to the employer but it was affirmed by the Court of Appeal
in Post Office v Foley (2000).
In British Home Stores Ltd v Burchell (1980)the Employment Appeal Tribunal held that
an employment tribunal should decide whether an employer had acted reasonably by
establishing the following matters:
(i) The employer should believe in the employee’s guilt or misconduct. Only the facts
known to the employer at that time could be relevant here, not facts discovered later.
(ii) The employer should have had reasonable grounds to believe in the employee’s guilt or
misconduct.
(iii) The employer should have carried out as much investigation as was reasonable in
all the circumstances. An employer who followed these three steps would have acted
reasonably.
Procedure to be followed
Earlier in this chapter the new grievance procedures contained in the ACAS Code
of Practice were considered. The Code also introduced new disciplinary and dismissal pro-
cedures. As is the case with grievances, both employers and employees should attempt to
settle disciplinary matters informally, using outside third parties if necessary. They should
also attempt to deal with matters promptly, without undue delay. The Code does not apply
to dismissals by way of redundancy or to dismissals which occur when a fixed term con-
tract is not renewed. The following five stages should be followed when a disciplinary issue
cannot be resolved informally.
n The employer should establish the facts of the case. This should be done without undue
delay and will involve carrying out necessary investigations. A preliminary investigative
meeting with the employee may be required to achieve this but no disciplinary action
should be taken at this preliminary meeting.
n The employer should inform the employee of the problem. If there is a disciplinary case
to answer, the employee should be given details of the case in writing. The details should
give the employee enough information for him to prepare an answer and copies of any
written evidence should be provided. As well as receiving written notice of the time and
place of the disciplinary meeting, the employee should be informed of his right to be
accompanied at the meeting.
n The employer should hold a meeting with the employee to discuss the problem. The
employee must be given time to prepare his case but the meeting should otherwise be
held without unreasonable delay. At the meeting the evidence against the employee
should be explained and gone over. The employee should be given a chance to set out his
own case and answer allegations and should also be given a reasonable opportunity to
ask questions, present evidence and call witnesses. If either side intends to call witnesses,
they should give advance notice of this.
n If the meeting could result in a formal warning being issued, or some other disciplinary
action being taken, the employer must allow the employee to be accompanied by a
companion at the meeting. The companion could be a fellow worker, a trade union
representative or an official employed by a trade union. The companion would have no