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Talking Tribunals #6 – New-found facts post-dismissal – can they help?
We’ll often be told that ‘it’s okay – the decision to dismiss the employee was a shaky one, but we’ve since discovered new facts that show the dismissal was fair’.
In reality, when deciding whether a dismissal is fair a tribunal gives little consideration to facts found after a decision to dismiss (as confirmed by this recent Employment Appeal Tribunal decision).
Honest belief – for a dismissal to be fair you must show that you had an honest belief that the employee did whatever is alleged. That belief must be based on reasonable grounds and following a reasonable investigation.
At the time of your decision – if you can demonstrate each of the above elements at the time you made the decision to dismiss, then you’ll be on your way to a fair dismissal (although you’ll still have a little more to do including showing that the decision fell within a ‘band of reasonable responses’ before a tribunal finds as such).
Influencing compensation – you may be able to use new-found facts to influence any compensation awarded once a tribunal has decided a dismissal was unfair. But,arguments that those facts validate your decision to dismiss will not convince a tribunal that the dismissal was fair.
Getting the right advice early will help ensure your decision-making process is as fair and robust as possible – Intelligent Employment is here to help. Find out more.
This update is accurate on the date it was published (24 March 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.