Was dismissal a reasonable response in the circumstances?

This was the question the employment tribunal (ET) was asked to consider in the case of Mrs Dumigan v The Mount School Limited. The Mount School is a private school for children aged 3–11. Mrs Dumigan was employed as a piano and singing teacher at the school from October 1997 to December 2021.

In this case, Mrs Dumigan brought a number of claims, including unfair dismissal.

Details of case

On Saturday 11 December 2021, Mr Sellers, the school’s director, sent an email advising all members of staff to attend a meeting on Monday 13 December 2021 at 13.40 at the school. Mrs Dumigan told Mr Sellers that she was unable to attend the meeting because she was seeing her sister and other family members on that day. This family gathering was to discuss treatment and care for her 90-year-old mother. However, Mrs Dumigan did not advise Mr Sellers of the importance of this gathering.

Resignation accepted!

Mr Sellers responded to the email and advised Mrs Dumigan that the meeting was not optional. She replied to tell him again that she was unable to attend. Mr Sellers then sent an email to Mrs Dumigan stating, ‘resignation accepted’, to which she replied to clarify that she had not resigned. However, she received a further email from Mr Sellers thanking her for ‘clearing up any avoidance of doubt’. He went on to inform her that the email was formal notice that her employment was to cease, that she would be paid until the February half-term and was not required to attend school any further.

No reasons for the dismissal

On 13 December 2021, Mrs Dumigan asked Mr Sellers, as well as her line manager and headteacher, for the reasons for her dismissal. She did not receive a response. Mrs Dumigan emailed again on 16 December 2021 asking for a statement of reasons for her dismissal. She also stated that she wished to appeal the decision and asked for confirmation that she would be paid her full statutory notice of 12 weeks. Mr Sellers responded by email, stating that she would be paid as set out in her contract of employment.

Employment tribunal findings

The ET noted that the school’s disciplinary and conduct policy is thorough and refers to investigation, hearings, appropriate action and an appeals process. It also contains a section setting out examples of gross misconduct. The failure to comply with reasonable management instructions from senior staff is considered to constitute gross misconduct.

No investigation

The ET noted that no investigation was conducted and no hearing took place. In addition, Mr Sellers had not considered any alternative sanctions and the ET considered him to be intent on dismissing Mrs Dumigan.

Mr Sellers did not address Mrs Dumigan’s request for a statement of reasons for her dismissal and/or her request to appeal the decision.

Points of law

In a claim of unfair dismissal, it is for the employer to show the reason for dismissal and that it was potentially a fair reason. One such potentially fair reason for dismissal is a reason related to conduct, which is what the school relied on. The ET then needed to determine whether the school genuinely believed that Mrs Dumigan was guilty of misconduct and whether it had reasonable grounds after reasonable investigation for such belief.

The ET stated that a dismissal may be unfair if there has been a breach of procedure which then could be considered as sufficient to render the decision to dismiss unreasonable. The ET stated that if there is such a defect to render dismissal unfair, it must then determine whether, and if so to what degree of likelihood, the employee would still have been fairly dismissed in any event had a proper procedure been followed.

Reasons for the ET findings

The ET found that the school had genuinely believed that Mrs Dumigan had committed an act of gross misconduct and her employment was terminated for that reason. However, when the ET considered whether the school had acted reasonably in all the circumstances in treating that as a sufficient reason to dismiss Mrs Dumigan, the ET found that it did not, and that the dismissal was outside the range of reasonable responses.

The judge came to this decision for the following reasons:

• A reasonable investigation did not take place.
• Mr Sellers did not explain to Mrs Dumigan the reason for the meeting; therefore, she was unaware of the importance of the meeting.
• Mr Seller stated that he did not discuss the matter with anyone else. This was against normal protocol as it was the headteacher who would normally investigate any concerns.
• When asked if he had considered alternative sanction to dismissal, Mr Sellers stated that it had gone ‘past that point’. Therefore, the judge found that this emphasised that he was intent on dismissing Mrs Dumigan.
• Mr Sellers failed to consider whether his own instructions were reasonable, that is to attend a meeting at short notice, on a day she did not work.
• None of these matters were corrected on appeal because no appeal took place. The Acas code of practice states that an appeal should take place without unreasonable delay.

On this basis, the judge found that Mrs Dumigan’s claim of unfair dismissal succeeds.

Summary and advice

Employers need to ensure that a fair process has been followed, by:

• Following the Acas code.
• Gathering evidence.
• Carefully considering and making findings about a situation.
• Considering any mitigating factors and any alternatives to summary dismissal.

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