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Employment tribunals - legal tests for unfair dismissal claims - misconduct

This advice applies to Scotland

If you want to make a claim to an employment tribunal because you think you've been unfairly dismissed over your conduct, it’s a good idea to work out whether your claim will have a reasonable chance of success before you start the claim.

This page tells you more about the legal tests a tribunal will apply to a claim for unfair dismissal for misconduct. These tests help them to weigh up the facts about your case before they make their judgment.

What will the tribunal consider?

The tribunal can’t find you were unfairly dismissed just because they believe your account of what happened. Before deciding the outcome of the claim for dismissal for misconduct, the tribunal will look at the following legal tests and apply them to your claim. They will want to know:

  • whether your employer genuinely believed you were guilty of misconduct
  • was there a proper investigation into what happened?
  • did your employer have reasonable grounds to think you were guilty?
  • would your dismissal be considered a reasonable response to the misconduct?

There are other legal tests that the tribunal will also look at that apply to unfair dismissal claims. These cover general areas of employment law. Your claim will also have to satisfy these legal tests before it can go any further.

Did the employer genuinely think you were guilty of misconduct

Sometimes an employer could allege you have done something wrong as an excuse to dismiss you. The tribunal will look at:

  • what you were dismissed for. This may be for a different reason to the initial allegation
  • whether the reason for your dismissal was genuine or whether it appears from the evidence that there was another reason for it
  • whether the dismissal process was fair.

It can be difficult to challenge an employer if they say that the reason for your dismissal was genuine unless you have evidence to suggest that they had an ulterior motive to dismiss you.

Was there a proper investigation?

The tribunal will look at how thoroughly your employer handled the investigation. They will look at:

  • who your employer spoke to
  • what evidence was gathered
  • could other people have been guilty
  • did you admit to the allegations.

Who did your employer speak to?

The tribunal will want to know which witnesses your employer spoke to and whether there was anyone else who could have been interviewed who would have helped them to decide what had happened.

If you think that your employer could have asked other people about the incident but didn't, this may help your claim.

What evidence was gathered?

Did your employer gather enough evidence or did they leave out evidence which could have changed the decision? If you think that your employer could have gathered other evidence, such as CCTV records, this might help to show your dismissal was unfair.

Could other people have been guilty?

Did your employer focus too early on you as the guilty person. Are there other investigations they could have done to find out if others were involved.

Did you admit to the allegations

If you admitted that you did what your employer accused you of, this will limit the amount of investigation the employer had to do. However, you may admit something but say it was for a reason. For example, you swore at a colleague because you were provoked. Even if you did admit to the allegations, your employer should have thoroughly investigated the situation by speaking to all the people involved and any witnesses.

Does your employer have reasonable grounds to defend their decision?

The tribunal will be looking at all the evidence the employer may give to defend their decision.

Evidence includes:

  • statements from witnesses
  • videos or recordings
  • computer records or emails
  • other documents
  • whether you admitted or denied you were guilty.

They will be looking to see if there are any weaknesses in the evidence which makes it unreliable. This could be, for example, statements which contradict one another, or unreliable video evidence, which doesn't clearly identify you.

If you denied the misconduct

If you denied the allegations, the tribunal will look at reasons why the evidence may support this, such as whether:

  • witnesses were lying or wrong
  • your employer carried out a proper investigation into what happened
  • other people may have been guilty.

Your employer doesn’t have to prove that you did commit the misconduct they accused you of – only that based on the evidence they had it was reasonable for them to believe that you did. You need to show that the evidence that they had was so weak that your employer should not have relied on it.

If you admitted the misconduct

If you admitted to the misconduct at the time, you can't challenge the decision your employer made on these grounds. However, the tribunal will look to see if it's reasonable that you were guilty of all or part of the allegation.

If you've been dismissed for misconduct, your dismissal can still be unfair whether or not you are guilty of the actions your employer sacked you for. If they didn't follow the proper disciplinary and dismissal process when they investigated the incident, the tribunal may find that your dismissal was unfair.

However, if the tribunal does think that you were guilty of the misconduct, any compensation award you get for unfair dismissal may be reduced. This is known as a Polkey Reduction or contributory fault.

Would your dismissal be considered a reasonable response to the misconduct?

The tribunal will also look at whether a reasonable employer would have considered dismissal as a reasonable response to the misconduct, To help them decide, they will also consider:

  • what you did, or what the tribunal reasonably believed you did
  • your disciplinary record and whether you've had any previous warnings
  • what the company's disciplinary policy says about dealing with this type of misconduct.

When is dismissal considered to be a reasonable response?

Some misconduct offences often result in dismissal. These include:

  • dishonesty offences, such as theft or over-claiming expenses
  • abuse of children, elderly or vulnerable people
  • breaches of health and safety rules which endanger other people.

Next steps

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