HM Insights

Tribunal wrong to consider previous warnings not relied upon by employer in determining whether dismissal was fair

This case highlights the established principle that employers must be clear in their reasoning for conduct related dismissals.


Mr Nejjary was employed as a hospitality manager by Aramark Ltd, which provided services for Goldman Sachs.  He was suspended on full pay further to two separate incidents involving him failing to ensure that event arrangements were in order for Goldman Sachs officials, firstly in relation to a breakfast meeting and secondly in relation to a lunch.

After he returned to work, a different Goldman Sachs official requested that Mr Nejjary was not assigned to any event that she was hosting after receiving a client complaint about his lack of enthusiasm.  As a result, Aramark invited Mr Nejjary to a disciplinary hearing, viewing this as yet another example of him bringing the organisation into disrepute.

At the hearing, Aramark determined that these three issues amounted to gross misconduct and dismissed Mr Nejjary.  His previous employment record was not taken into account in reaching this decision.

Mr Nejjary appealed against his dismissal.  Aramark upheld their decision to dismiss, but discounted the client complaint and lunch issue and only relied upon his misconduct relating to the breakfast meeting.

Mr Nejjary brought a claim for unfair dismissal.  In holding that his dismissal had been fair, the employment tribunal held that Mr Nejjary's dismissal for the breakfast meeting issue alone would have been outside the range of reasonable responses, but given that he had previously received warnings for such behaviour, Aramark were entitled to treat this conduct as a sufficient reason for dismissal.  Further, it held that had the dismissal been unfair, it would not be just and equitable to award compensation given that Mr Nejjary's contribution to his dismissal was 100%.

Mr Nejjary appealed to the EAT.


The EAT found that the tribunal had been wrong to consider the issues which Aramark had ultimately disregarded in deciding to dismiss Mr Nejjary.  There had been one reason in Aramark's mind when dismissing Mr Nejjary – the breakfast meeting issue – and the tribunal should only have considered whether this reason on its own was sufficient for dismissal.

It therefore followed that the tribunal had considered Mr Nejjary's conduct in relation to all three issues and not only in relation to the breakfast meeting in determining the question of contributory fault.  The tribunal had therefore erred in assessing contributory fault given that Mr Nejjary could not have contributed to his dismissal by matters of conduct which were not considered in deciding to dismiss him.

In light of the tribunal's finding that dismissal due to the breakfast meeting issue alone would not have been within the range of reasonable responses open to the employer, the EAT found that Mr Nejjary had been unfairly dismissed.


This case clarifies how wide the reasonableness test under section 98(4) of the Employment Rights Act 1996 is.  Whilst the tribunal is required to take into account "the circumstances" and "equity and the substantial merits of the case" in deciding whether the employer acted reasonably in deciding to dismiss the employee, the EAT has clarified that the tribunal can only consider the specific issues which the employer took into account in its decision to dismiss, and cannot turn its attention to any other instances of misconduct which the employer chose not to rely upon when dismissing the employee.

The decision also highlights the importance of an employer ensuring that the reasons for dismissal are clear and recording these accurately in the subsequent letter confirming dismissal.  Had Aramark adequately referred to the other two issues, which it had relied upon before the internal appeal, the decision to dismiss would most likely have been within the range of reasonable responses.