Model statutes take centre stage in assessing fairness of dismissal

A recent decision from the Employment Appeal Tribunal about an academic at a pre-1992 university is a reminder that Employment Tribunals should assess the fairness of a dismissal with the model statutes firmly in mind.

In this case a university had dismissed an academic who had not declared a brief sexual encounter with a student. It relied on a provision in its model statues which entitled it to dismiss for “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”.

The academic argued that although he regretted his decision not to declare the relationship, there had been no evidence that he had behaved in a predatory fashion or failed to assess her work fairly. The university nonetheless took the decision to dismiss, a decision which the Tribunal ruled was fair. However in its reasoning it made the mistake of equating the somewhat archaic language of the model statutes with the modern concept of gross misconduct. Given that the employee had admitted a clear breach of the university’s guidance on relationships with students, the Tribunal concluded it had been reasonable to dismiss.

The EAT emphasised that the employee had a contractual right not to be dismissed unless the specific test for misconduct in the university’s model statutes had been met. It followed that in assessing the fairness of the dismissal in this case, it needed to assess whether the university had acted reasonably in concluding that the employee had indeed been guilty of conduct of an “immoral, scandalous or disgraceful nature”. This, concluded the EAT, the Tribunal had failed to do.

There was also an additional factor which made the Tribunal’s decision unsafe. A number of important passages favourable to the employee in the investigator’s draft report had been removed from the final report after intervention from the HR department and in-house lawyer. The Tribunal had not explained in sufficient detail why this did not vitiate the fairness of the investigation process.

For all pre-1992 universities, this judgment places an emphasis on the specific wording used in university statutes (or ordinances) to describe dismissal for good cause. We recommend that universities identify in allegations of serious misconduct on which element of their statutes they are seeking to rely and, as appropriate, to incorporate such an element into their decision making and written reasons for dismissal. Although there is scope for universities with similar outdated wording to adopt a modern interpretation, universities can usefully take the opportunity when next changing their statutes to update the terms for the dismissal of academics.

 

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