When deciding if a dismissal is unfair, tribunals have to take into account whether the decision was within the band of reasonable responses. In Butler v Synergy Health UK Ltd, the EAT held that, having made a finding that Mr Butler had not had enough time to change his behaviour before he was dismissed, it was perverse for the tribunal judge to decide that it was reasonable for his employer to dismiss him.
Basic facts
Mr Butler had worked as a technician since April 2010 for Synergy Health which provides sterilisation and decontamination services for medical devices. Because of the nature of his work, he had to change into and out of specialist protective clothing (PPE) at the beginning and end of his shift, which he did within company time.
Mr Butler was absent from work between February 2018 and April 2019. Just before he returned, he received a letter confirming that his terms and conditions had not changed during his absence.
The day after his return, a supervisor noticed that he was getting ready to leave before the end of his shift. He explained that this was to allow him to change out of his PPE. He was then told that the company had introduced a system requiring staff to change into and out of their PPE in their own time. He refused to follow that instruction, saying it constituted a change to his terms and conditions. As a result, he was given a final written warning which he appealed unsuccessfully. As he continued to refuse to obey the instruction, he was asked the day after the appeal hearing to attend a further disciplinary hearing which took place a week later. He was dismissed at that meeting.
Mr Butler lodged tribunal proceedings for unfair dismissal arguing that the right to change into and out of PPE was an implied term in his contract as evidenced by a notice above the clocking machine which stated that:
“All staff clocking in/out must ensure it is on the hour as deductions will be made if late clock in early clocking out ….”.
Tribunal decision
Rejecting his claim, the tribunal judge held that the notice above the clocking out machine was “no more than a reminder to staff that they should clock out on time to avoid deductions being made to their wages”. Mr Butler could not, therefore, establish breach of contract.
With regard to the instruction to change into and out of PPE in his own time, the judge held that this was reasonable. Although some of the disciplinary process that the company had followed was not ideal, overall, it fell within the range of reasonable responses. As the reason for dismissal (conduct) was potentially fair and as the employer had carried out a reasonable investigation, the judge concluded that the dismissal was fair.
EAT decision
The EAT agreed with the tribunal judge that there was no implied term in Mr Butler’s contract entitling him to change out of his PPE prior to the end of his shift; and that the company’s instruction to Mr Butler to act in accordance with the new policy was reasonable.
However, her conclusion that the dismissal was fair was at odds with some of her own findings. In particular, the EAT said that “it was an evident oversight” on the tribunal judge’s part not to engage with her finding that Mr Butler had a genuine, albeit mistaken, belief that his employer’s instruction was not lawful.
The EAT also held that it was perverse for the tribunal judge to ignore Mr Butler’s argument that he had not had sufficient time to consider the outcome of the appeal against his final written warning and to change his actions before the company initiated further disciplinary proceedings resulting in his dismissal.
It therefore allowed the appeal.
Comment
The decision of the EAT in this case related solely to liability and in particular consideration of the “reasonable responses” test. In concluding remarks, the EAT expressed the view that the question as to whether Mr Butler would have changed his stance had he had more time was a matter which “could legitimately be considered at the remedy stage”. The decision is a reminder that one should avoid conflating the question of liability with that of remedy.
