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Failure to take mitigating circumstances into account makes dismissal unfair

Employers should ensure they take mitigating circumstances into account when deciding on sanctions, particularly dismissal, against an employee for misconduct – or risk the dismissal being unfair.

A security guard had a good employment record, but a factory he was guarding was broken into. During the investigation into what had happened, he was seen smoking cigarettes on site against company rules. Despite his apology he was suspended and subsequently dismissed. He claimed unfair dismissal.

The Employment Appeals Tribunal ruled the employer should have taken mitigating circumstances such as his good record into account. It also found that dismissal was an unfair and disproportionate sanction because the employer’s disciplinary and grievance procedures were not clear. Dismissal was therefore outside the range of reasonable responses for an employer in these circumstances and was unfair.


Employers should ensure they take mitigating circumstances into account when deciding on sanctions against an employee for misconduct. They should also ensure their disciplinary and grievance procedures are fair, reasonable and clear or risk the sanction being held unfair and disproportionate.

Case ref: Vincent T/A Shield Security Service v Hinder UKEAT/0174/13/MC

Alex Cook is a Director at Helix. Alex initially trained academically as an unregistered barrister and was a Partner and Head of Civil Litigation at a large firm based in the South East before joining Helix Law. As well as focussing on expanding Helix, Alex specialises in commercial and property related litigation and he has acted for a broad range of clients including offshore property investment funds, small businesses and individual property owners.

This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of  this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice. 

Contact Helix Law on 01273 761 990 or email: [email protected]