What does a Gibraltar Employment Tribunal have to find for an employee to succeed in their unfair dismissal claim in alleged misconduct cases?

Chris Brunt is a Gibraltar employment lawyer, a Barrister and Acting Solicitor who will consider all unfair dismissal cases on a “no win no fee” basis.

Ms T’s employer accused her of theft of £60 from the petty cash box. Ms T was summoned to meet with her line manager who questioned her about the matter. Ms T was later suspended from work on full pay. The following week she was invited to a disciplinary hearing, following which she was dismissed for gross misconduct. Ms T later appealed her employer’s decision to dismiss her, but her appeal was not upheld. Ms T filed a claim in the Gibraltar Employment Tribunal for unfair dismissal.

Ms T’s position was simple, she denied having taken £60 from the petty cash box and therefore to dismiss her for something she had not done was unfair. Ms T felt extremely wronged and understandably upset as she maintained that she had lost her job as a result of something she did not do.

In readiness for the tribunal hearing for unfair dismissal, Ms T prepared her case to attempt to demonstrate that she was not the thief who took the cash, and that her employer got it wrong when dismissing her.

It may surprise some however that when a claim for unfair dismissal is being heard, the Gibraltar Employment Tribunal’s primary focus is not whether the claimant employee actually did the act for which they were dismissed. Why is this, and what does this mean for the claimants such as Ms T?

Simply put it means that even if it is the case that Ms T had not stolen the money, as in the example above, the Gibraltar Employment Tribunal may still find the dismissal fair. This is because a certain amount of latitude is afforded to the employer and they only have to show that they acted reasonably when dismissing the claimant.

So what is reasonable? Apart from a fair disciplinary and appeal procedural process, discussed in a previous post on unfair dismissal, the Gibraltar Employment Tribunal will be concerned with the following.

  • Did the employer reasonably believe that the employee was guilty of the misconduct?
  • Did the employer have reasonable grounds for that belief?
  • Did the employer arrive at that decision after conducting a reasonable investigation?

So from our example above, it is still possible for the Gibraltar Employment Tribunal to find that Ms T was fairly dismissed despite the fact that she did not steal the £60 as long as they had approached the situation by considering the 3-stage test above.

This approach is known as the “Burchell Test” and comes from the decision in British Home Stores v Burchell [1978] ILLR 379, an important English case, which is uncontrovertibly part of Gibraltar employment law as the common law in England, is to the extent it is not excluded by Gibraltar legislation, the law in Gibraltar.

In addition to considering the Burchell Test. The Gibraltar Employment Tribunal will also “determine whether the dismissal was fair or unfair having regard to the reasons shown by the employer and that shall depend whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee…..and that question shall be determined in accordance with equity and the substantial merits of the case”. Gibraltar’s Employment Act, Section 65(6).

In Iceland Frozen Foods v Jones [1983] ICR 17,  the court, when discussing the English Employments Rights Act, Section 98(4), and which is reflected in Gibraltar’s Employment Act at Section 65(6) above, held that in applying the section of the Act the starting point should always be,

  • the words of Section 98(4) themselves. (Gibraltar’s section 65(6)).
  • in applying the section an employment tribunal must consider the reasonableness of the employer’s conduct and not simply whether the employment tribunal considers the dismissal to be fair.
  • in adjudicating on the reasonableness of the employer’s conduct an employment tribunal must not substitute its decision as to what was the right course for the employer to adopt.
  • In many cases though not all, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another might reasonably take another.
  • The function of the employment tribunal as an employment jury is to determine whether in the particular circumstances of each case the decision to dismiss fell within the band of reasonable responses that a reasonable employer might have adopted. If the dismissal fell within the band the dismissal is fair – if it fell outside the band, it is unfair.

What does the band of reasonable responses mean practically speaking? If an employee was dismissed because he was late for work on one occasion, it is submitted that this is not within the band of reasonable responses. That is because no reasonable employer would deploy such an extreme sanction on such an occasion. However, if an employee was continually late on many occasions, despite several warnings, then dismissal could be within the band of reasonable responses that an employer might deploy for this misconduct.

Wide discretion is given to the employer as to the sanction applied, though it must be reasonable, and within the band of reasonable responses that an employer might deploy, though not all employers need to react in the same way.

What does this mean for our example above?

If the Gibraltar Employment Tribunal found that Ms T’s employer

  • had carried out a reasonable investigation into the circumstances surrounding the theft of the £60, and
  • the employer has reasonable grounds as a result, and
  • having a reasonable belief in Ms T’s involvement, and
  • the sanction of dismissal was within the band of reasonable responses (which it is submitted, theft will be).

Then Ms T will not have succeeded in her unfair dismissal claim, despite not being the culprit who stole £60 from the petty cash!

Of course, the approach taken by the employment tribunal in deciding whether a dismissal is fair or unfair does not only extend, as in our example to theft cases but to all cases where the employer alleges misconduct of any sort against an employee.

Summary – Is it unfair dismissal?

While a lot of innocent claimants might find this rather harsh. It is good to understand the principal points that an employee would have to demonstrate to successfully win a claim of unfair dismissal when misconduct has been alleged against them. It is not enough to attempt to show that they were simply ‘innocent’ of the allegation, but rather when they were dismissed

  • was a reasonable investigation undertaken by their employer? And
  • did the employer reasonably believe the employee was guilty of the misconduct alleged? And
  • was there reasonable grounds for that belief? And if so
  • was the dismissal a reasonable sanction that fell within the band of reasonable responses, that is one that a reasonable employer could deploy in the particular circumstances?

Final thoughts

While the Gibraltar Employment Tribunal will not in our example consider directly whether Ms T had stolen the money in order to make a finding of unfair dismissal, it is nevertheless essential to have a case theory.

For instance, a finding of unfair dismissal might be found if it could be established (for example) that somehow as a result of Ms T’s adducing evidence to show she was not the thief, the employer’s claim to have carried out a reasonable investigation was in some way unsustainable. Or as a result of the incomplete or unsatisfactory investigation, the employer could not have reasonably believed in her guilt.

Are you an employer who requires advice on an investigation or disciplinary process?

Or are you an employee who has been suspended at work, undergoing an investigation or has received an invitation to a disciplinary hearing?

If you have been dismissed you have to act quickly as your right to bring a claim is time-limited

Contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, for advice to employers on reducing your businesses’ exposure to an unfair dismissal claim – Or, if you are an employee to evaluate your prospects for a claim for unfair dismissal?

Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law.

Contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, for advice to employers on reducing your businesses’ exposure to an unfair dismissal claim – Or, if you are an employee to evaluate your prospects for a claim for unfair dismissal?

All cases are considered on a “no win no fee” basis.

Telephone me at (+350) 200 73900, or email me at chris.brunt@phillips.gi


All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/

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