EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL – Reasonableness of dismissal
Fair hearing – whether ET findings made on basis of points not raised by Claimant
Unfair dismissal – fairness of dismissal – whether ET fell into substitution trap/reached perverse decision
The Claimant, an experienced prison officer, used physical force towards a prisoner. The prisoner’s account of the incident was contradicted in certain respects by CCTV footage but the recording was never put to him. After a disciplinary hearing, where the CCTV footage was viewed, it was concluded that the Claimant had assaulted the prisoner (she had not acted in self-defence) and should be summarily dismissed. The Claimant claimed this was unfair. The ET agreed, finding the failure to return to the prisoner with the CCTV evidence rendered the investigation unfair. Further, as it was unsafe to rely on the prisoner’s account of the incident and as the ET did not consider the CCTV footage supported the Respondent’s conclusions, the decision to dismiss had been unfair. The Respondent appealed.
Held: allowing the appeal and remitting the case to a different ET
To the extent there was a failing in the disciplinary investigation, it did not render the dismissal unfair because the decision had not been based upon the prisoner’s account but on what could be seen on the CCTV recording (this was not a case where the decision depended upon which account was preferred). The recording provided reasonable grounds for the decision notwithstanding it had not been put to the prisoner. It was, moreover, perverse to find the decision to dismiss was based upon the prisoner’s account. In assessing the Respondent’s finding that the Claimant had not acted in self-defence, the ET had fallen into the substitution trap, basing its conclusion on what it had itself taken from the CCTV recording rather than asking what the Respondent could reasonably have concluded (in particular, at the point in the footage when the alleged assault took place). Some of the points relied on by the ET had emerged during the evidence and had not been specifically raised in the pleadings; that did not necessarily render the hearing unfair but meant the ET may not have had the benefit of full representations from the parties on all the matters that had apparently weighed with it.
Citations:
[2017] UKEAT 0096 – 17 – 0210
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601909