Reasonableness of Dismissal – Wilson Devonald Ltd v Suckling

Ms Suckling was a receptionist at a law firm, who had not been the subject of “previous concerns or complaints about her work” and was dismissed following one incident of misconduct.

Ms Suckling made the decision to allow two young clients of the firm, one of whom was bleeding from the hand, and both of whom were in a state of anxiety, to enter the offices and be let out of the back door, seemingly to facilitate an escape from pursuers, (allegedly the police). The firm argued that the Ms Suckling should not have allowed the clients to enter in the first place, and certainly should not have allowed them access to a part of the office which was off-limits for clients.

To compound the risks of her actions, it was known to Ms Suckling that both clients “had the Hepatitis virus and were both rumoured to be HIV positive which, in view of one of them having an open wound at the time “posed an obvious risk to staff.”  She was suspended. A disciplinary hearing was heard, and she was dismissed. The Employment Tribunal found that the dismissal of Ms Suckling was “outside the band of reasonable responses” available to the firm, and that her dismissal had been unfair.

The firm appealed, arguing that the Tribunal had been satisfied that Ms Suckling had been guilty of gross misconduct, but had slipped into the “substitution mindset[1], substituting its views for the views of the firm, in determining whether it was reasonable for the firm to dismiss her.

On appeal, it was stated that if a reasonable employer “might have dismissed” an employee, then the dismissal was fair. There existed a “band of reasonableness”, within which there was scope for two different employers to take two different views, both of which would be reasonable in the circumstances.

The Employment Appeal Tribunal allowed the firm’s appeal, re-affirming the “band” of reasonable actions an employer has available to them following gross misconduct, which can include dismissal.

[1] As described by Mummery LJ in London Ambulance Service v Small [2009] IRLR 563


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