EAT Unfair Dismissal – The three Claimants were dismissed without notice for being involved in a fight at the workplace with a fourth employee.
An Employment Judge considering their claims of unfair dismissal and failure to pay notice did not say what the employer’s conduct was in dismissing them, but instead set out the facts he found as to what had happened during the fight, and concluded in the light of that what he thought a reasonable investigation would have uncovered. He mis-stated the burden of proof twice; made a finding that there had been provocation, which was surprising since he did not find that there had been any violence by the Claimants which had been ‘provoked’ as a result, and nowhere indicated that his findings as to the actual events (as opposed to the employer’s perception of them) were related to the issues of whether the Claimants were entitled to be paid notice pay, or had been guilty of contributory conduct, because he made no express distinction between the law’s requirement that the actual facts be established in respect of the former, and the fact of what the employer thought when dismissing in respect of the latter. He also found that there was an inconsistency of penalty in that two other employees, who were also present during the fight, had not been dismissed, but did so without enquiring whether the employer reasonably thought they were or were not truly comparable, and, if the latter, did so on reasonable grounds. An appeal based on substitution was allowed, and the case remitted for complete rehearing before a different Tribunal.
Langstaff P J
[2014] UKEAT 0180 – 14 – 0710, [2014] UKEAT 0318 – 14 – 0710
Bailii, Bailii
England and Wales
Employment
Updated: 24 December 2021; Ref: scu.539298