In Vincent T/A Shield Security Service v Hinder, Hinder (H), a security guard with 6 years’ unblemished service, was dismissed for smoking illegally inside a client’s premises, a serious breach of Health and Safety Regulations. An employment judge (EJ) found the dismissal was unfair on five grounds: (i) the employer’s disciplinary procedure was unclear as to whether a serious infringement of health and safety rules was a gross misconduct offence; (ii) H had been confused at the time of the incident; (ii) neither of H’s colleagues who had witnessed him smoking had stopped him; (iv) the premises were more or less empty; and (v) a reasonable employer looking at H’s good record would have considered an alternative sanction, but no consideration was given.

The employer appealed, arguing the EJ had substituted his own decision. The EAT disagreed. While the EAT might have decided the matter differently, the EJ, by deciding as he did, had not misdirected himself in terms of the reasonableness test. The EJ was best placed to judge the matter and had decided that, given the facts and the circumstances, in particular the lack of consideration of an alternative sanction in the case of somebody with a good record, dismissal was not the action of a reasonable employer and not within the band of reasonable responses.

This case demonstrates why employers must be able to show how they addressed each of the considerations before deciding to dismiss as set out in the guidance on Page 27 of the Acas Guide Discipline and grievances at work i.e.: (i) whether the rules were clear on the likely penalty for the particular misconduct; (ii) the penalty imposed in similar cases in the past; (iii) the employee’s disciplinary record, general work record, position and length of service; (iv) any special circumstances which might make it appropriate to consider an alternative sanction; and (v) whether the proposed penalty is reasonable in view of all the circumstances.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.