Where there is a complaint of misconduct, an employer will not normally be judged to have acted reasonably unless a full and fair investigation into the circumstances is carried out, giving the employee the chance to speak in his or her defence. Where an employer fails to follow a fair procedure and an employee is dismissed, when applying the test of reasonableness as stipulated in Section 98(4) of the Employment Rights Act 1996, the Employment Tribunal (ET) is not permitted to ask the hypothetical question of whether it would have made any difference to the outcome if the appropriate procedure had been followed. However, where an employer itself reached the conclusion that following the correct procedural steps would not have made any difference to its decision and could therefore be dispensed with, the test of reasonableness may be satisfied. This distinction arose in a recent case (Scott v EC Maritime PCC Limited) in which a maritime armed guard who was sacked after failing to get on with a client won a fresh chance to prove that his dismissal was unfair.

Mr Scott, an ex-Royal Marine, was employed by EC Maritime PCC Limited on a rolling fixed-term annual contract to provide armed security services on board vessels at risk of piracy. The company is a protected cell company based in Saint Peter Port, Guernsey. After he attended an induction day with Ambrey Risk, a new client that had taken over the transit security business of a former client, it stated that it did not wish to work with him based on its assessment of his ‘attitudinal and behavioural fit’ with its business. EC Maritime assured him that it would investigate the allegations made against him but released him from the contractual constraint that prevented him from working for other companies as it was unable to offer him further deployments until the investigation was over. In the event, Mr Scott heard nothing further from his employer, and on 31 January 2015 his fixed-term contract expired without his employer having carried out any significant investigation.

Mr Scott complained to an ET that his dismissal was unfair. He had not received the benefit of a disciplinary hearing at which he would have had the opportunity to explain himself and Maritime had failed to look for alternative work for him in other cells of the company.

The ET found that Mr Scott had been dismissed for a potentially fair reason – i.e. some other substantial reason justifying dismissal – namely pressure for his removal by a third-party client to whom he had been assigned. In the ET’s view, his dismissal was fair as it fell within the range of reasonable responses open to his employer to take the view that nothing was to be gained from investigating matters further. The ET also accepted that it was not EC Maritime’s practice to see if there was alternative work for an employee working in one cell with clients that were served by another cell, and accepted its evidence that the market was contracting and there was no indication that other vacancies existed.

Mr Scott challenged the ET’s findings. On the issue of alternative work, the Employment Appeal Tribunal (EAT) upheld the ET’s finding. Where the ET had erred, however, was in its approach to the issue of fairness. In handing down its judgment, the EAT noted that the ET’s decision was not as clearly explained as it might have been, but it would seem that there was no clear evidence for its finding that it was EC Maritime that had concluded that there was no point in investigating further what had occurred between Ambrey Risk and Mr Scott rather than that being the ET’s own view. Indeed, there was evidence that EC Maritime had told Mr Scott that it would investigate matters further. The ET’s decision was therefore unsafe.

In the circumstances, the case was sent back to a freshly constituted ET for reconsideration.