Sunday, 17 February 2013

How ridiculous is this?


One of the 'reasons' given by the judge when dismissing my claim was that it was not the role of the tribunal to replace their decision with that of the employer. When I relate this to any fair minded member of the public their reaction is, 'Then what is the point of going to a tribunal?'
To illustrate my point further please consider the following report on a recent case:
Range of Responses Test
[Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary]

In an unfair dismissal case, is it for the tribunal to decide whether or not the dismissal was fair?

No, says the EAT in Bryant v Sage Care Homes Ltd.

Ms Bryant, a nurse with a long and unblemished record, worked at the Respondent's nursing home. She instructed a care assistant to administer a drug to a patient. The care assistant gave the drug to the wrong patient, and Ms Bryant learned of the error shortly after.

Ms Bryant was dismissed for failing to record or report the error. The tribunal held that dismissal was within the range of reasonable responses. The EAT held that although any reader of the tribunal judgment might think that Ms Bryant had been harshly treated, the decision was not perverse.

There is nothing new or startling in this judgment. But those who persist in thinking the 'range of reasonable responses' test an impermissible gloss on the language of section 98 may derive some wry amusement from a judgment of which the judge's own summary puts the point this baldly: 'It was not the task of the employment tribunal or the EAT to decide whether the dismissal was fair.'
My comment:- It is my opinion that any 'fair minded' person's reaction would not be 'wry amusement' but rather one of shock and horror. When putting in a claim for unfair dismissal, the expectation is, and should be that the tribunal will make such a decision. There seem to be a growing number of mantras used by judges which denies this role. Another which is commonly quoted in many cases is ' the tribunal must not replace their decision with that of the employer.' In the reasons given to me, after a long tirade the judge finally adds this mantra. To me this negates the need for any of the preceding pages. If there is no such thing as 'unfair dismissal' in the eyes of the tribunal why isn't it in the rules? I cannot see how that equates with the pledge to 'do right by all manner of people.' If the judges work on these principles the employer only has to put forward a token resistance and they cannot lose. If it is deemed that the employer is always right, any tribunal hearing is a complete waste of time and resources.

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