Mr Broecker, a bus driver, was dismissed for four incidents of misconduct including using a mobile phone whilst in the cab, failing to follow the defect reporting procedures and for lost mileage due to (improperly) reporting defects. These matters occurred over a number of months and were dealt with at two separate disciplinary hearings. The first resulting in a final written warning (albeit the disciplinary manager believed Mr Broecker to be guilty of gross misconduct), and the second resulting in dismissal.
At first instance the Employment Tribunal Judge ("EJ") found that the Claimant had been dismissed for four instances of misconduct, two of which were protected disclosures, but that the disclosures were not the primary reason for the dismissal so a claim for automatically unfair dismissal was unsuccessful. The EJ went on to conclude that the Respondent could have dismissed fairly for the two instances of misconduct that were not connected to the protected disclosures and therefore the dismissal was fair. However, the problem with this logic was that the evidence clearly showed that the decision to dismiss was based on all four acts of misconduct. The Claimant appealed to the EAT.
The EAT firstly considered the EJ's conclusion on the protected disclosures. They decided that the EJ had assessed this on the basis of whether there was "blatant unfairness" when in fact he should have considered if the disclosures were the primary reason for the dismissal. The EAT then went on to consider whether the employer had shown a clear reason for the dismissal in amongst the multiple factors it was relying on. Earlier case law (Smith v Glasgow City Council) which related to a dismissal for both conduct and capability reasons confirms that if an employer fails to demonstrate the principal reason for dismissal, because they don't distinguish between multiple factors that were taken into account, then their defence to a claim will fail. It also confirms that the EJ cannot impute a reason for the employer's dismissal which the employer did not have at the time of the dismissal. The EAT were of the view that although this case related only to misconduct, the same issues arose and found that the dismissal was unfair.
This case highlights the need for the employer to carefully consider the reasons they are relying on for the dismissal at the time the decision to dismiss is taken. The reasons should then be clearly set out in writing. Employment Tribunals usually take place many months after a decision to dismiss and a employer will want to be able to look back at written records that will enable witnesses to give clear evidence on their decision making process.