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Misconduct dismissals: getting it wrong on appeal and contributory fault

27 September 2012 #Employment

The case of Neijjary v Aramark Ltd confirms that employers need to be careful when dismissing on misconduct grounds where a number of allegations are made, not all of which may be upheld on appeal. It also deals with the issue of contributory fault.

In this case, Mr Neijjary was employed as a hospitality manager by Aramak, a hospitality services company, at a Goldman Sachs site. He was summarily dismissed following three instances of alleged misconduct. At his disciplinary appeal hearing, Aramak upheld Mr Neijjary’s dismissal based on one instance of gross misconduct only without considering whether that one instance was still enough to warrant dismissal.

The Tribunal found that Mr Neijjary had been fairly dismissed. The reasons for this were that, although the single instance of gross misconduct relied upon was not held to be sufficiently serious to justify dismissal (failure to check a booking form), taking into account the surrounding circumstances including the fact that Mr Neijjary had received two prior warnings for similar issues, his dismissal had been within the band of reasonable responses. In any event, the Tribunal found that Mr Neijjary had contributed 100 per cent to his dismissal.

The EAT allowed Mr Neijjary’s appeal  and found that his dismissal had been unfair. Aramak’s sole reason for dismissing him was the one instance alleged gross misconduct (failure to check a booking form); no other matter had been referred to in his dismissal letter or appeal decision letter. Nor had his previous record been taken into account. Therefore it was wrong for the Tribunal to substitute its own reason for his dismissal, having found that the act in question did not constitute gross misconduct.

The EAT also commented on the Tribunal’s finding of contributory fault, as it had incorrectly considered all three instances of alleged misconduct and concluded that Mr Nejjary`s had contributed to his dismissal in any event. The EAT confirmed that the Tribunal must only consider matters causally connected to or related to the dismissal ie the conduct which played a part in Aramark`s decision to dismiss him. The EAT substituted a finding that the dismissal was unfair and remitted the question of remedy back to the Tribunal.


This case confirms that a tribunal is confined to the specific issues which the employer took into account in its decision-making process when deciding whether a decision to dismiss was within the band of reasonable responses. It is therefore important for employers to be clear on the reasons for dismissing an employee, as these alone will be scrutinised by the tribunal. For more information on disciplining and dismissing employees fairly see the Buddy Factsheet.

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