REWARD
“The Employment Tribunal had to consider whether the claimant’s omission of details on their application form was a fair reason for dismissal”
Not disclosing a previous gross misconduct dismissal warranted a fair dismissal In the case of Easton v Secretary of State for the Home Department (Border Force), the ET had to consider whether the claimant’s omission of details on their application form was a fair reason for dismissal. The claimant had held various roles within the civil service until they were dismissed for gross misconduct from a Home Office role in 2016. In 2019, when the claimant applied to work for Border Force, they were asked to fill out an application form including a free text box detailing their employment history. In this box, the claimant only mentioned the start and end years of their previous employment and didn’t include the gross misconduct dismissal. The claimant also ticked a box that read, “I understand my application may be rejected or I may be subject to disciplinary action if I’ve given false information or withheld relevant details.” They were offered employment and began working. Within a few months, one of their previous line managers made their current line manager aware they had been dismissed for gross misconduct. A full and thorough disciplinary investigation was launched alleging that the claimant had failed to disclose this in their application form. The claimant was suspended from work and dismissed for gross misconduct for being dishonest in their application. Various claims were brought but only the unfair dismissal claim went forward to be considered by the Tribunal. The claimant argued that, as the application form didn’t mention the need to include the reasons for leaving previous employment, or for any gaps in employment history to be explained, it was unreasonable to dismiss for a failure to include this information. However, the ET found the claimant had been previously told the dismissal wouldn’t be an “automatic bar to being re-employed”. The ET took this to show that the claimant understood that their previous dismissal would be relevant to their application for future employment. Based on this, the ET held that the dismissal fell within a band of reasonable responses open to the respondent and was therefore fair. The claimant appealed, arguing the
application form lacked guidance as to what was relevant information in relation to previous employment, and so the decision as to what to include in the box was down to their discretion. They held that the fact that certain information was omitted wasn’t done wilfully to mislead the respondent, and they had completed the form to the best of their knowledge. The Employment Appeal Tribunal (EAT) upheld the ET’s decision that the respondent was entitled to conclude that a reasonable applicant faced with a blank box headed “employment history” on an application form would have understood that this would include information on any gaps in employment, education or training. The EAT confirmed that the ET had correctly applied the Burchell Test in finding that the respondent had reasonable grounds to believe that the claimant’s decision to omit the dismissal and gap in employment from their “employment history” was done so dishonestly. NHS Trust took all reasonable steps to prevent harassment on the grounds of race In the case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Hammond, the ET had to consider whether the claimant suffered harassment as a result of their race. Campbell was employed by the Trust as Branch Secretary of a union. During a discussion between Campbell and Hammond regarding a union subscription, Hammond became angry and repeatedly called Campbell a “f**king muppet” and a “f**king monkey”. Only a few days before this incident, Hammond attended mandatory training provided by the Trust on diversity and equality. Campbell is black and Hammond is white. Campbell brought a claim against the Trust alleging that they had been harassed on grounds of race by Hammond and that the Trust was liable for that. The ET found that while the remarks had been made, that they weren’t said “in the course of” Hammond’s employment as required under the Equality Act 2010.
The ET accepted the incident took place during the working day (albeit during a break) and happened on the employer’s premises. However, they held that the remarks weren’t in the course of employment because Hammond didn’t have to be a member of the union to be employed, and the discussion during which the remarks were made related to a personal dispute Hammond had with the union as an individual. The ET also found that the Trust had taken all reasonable steps to prevent the remark or anything of that nature. This included: l induction sessions at which the issue of “acceptable behaviour at work” and the Trust’s core values were emphasised l annual performance assessments which covered whether they were acting in accordance with the values l the display of the values on posters in the workplace l mandatory training on equality and diversity issues. The appeal was based on two grounds. First, it was argued that the conversation had taken place at work and therefore, it was in the course of employment. The ET, it was said, had focussed solely on what was said rather than looking at the matter as a whole. The EAT rejected this, finding that the ET hadn’t based its decision on just what was said but balanced the factors for and against the argument that the comment was made in the course of employment. Second, it was argued that the ET had only asked itself what steps the employer had taken but failed to ask itself whether there were any further preventative steps that could have been taken that were reasonably practicable. This, the EAT found, was moot, as the first ground had already been rejected. Therefore, it wasn’t necessary to look at the defence. However, they found that the ET had properly addressed the statutory defence of “all reasonable steps” when it found as fact that Hammond had been provided with mandatory diversity and equality training only days before the incident. n
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| Professional in Payroll, Pensions and Reward |
Issue 112 | July-August 2025
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