A v B: EAT 14 Nov 2002

The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation took over two years during which time the claimant was prevented from speaking to anybody at the home, and therefore from preparing his defence. The authority withheld inconsistent statements from the employee and the disciplinary hearing. He was dismissed. The tribunal did not accept that the standards of proof of such serious allegations were in any way different, and rejected the claimant’s claim for unfair dismissal.
Held: The employee’s appeal succeeded. Employers must take seriously their responsibilities to conduct a fair investigation where, as here, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.
Furthermore the delays here amounted to grossly improper delays in the dismissal procedures.
The relevant circumstances did include a consideration of the gravity of the charges and their potential effect upon the employee, and ‘Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.’
and ‘The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employer to give the alleged wrong-doer the benefit of the doubt without feeling compelled to have to come down in favour of one side or the other.’
and ‘. . no reasonable Tribunal properly directing itself in law could have so concluded. We think that the Tribunal in this case focused too much on whether the defects actually affected the ultimate decision. In so doing they approached the matter wrongly as a matter of law. In any event we do not consider this is a case where one can say that the decision would inevitably have been the same, even if the proper procedures had been complied with.’

The Honourable Mr Justice Elias
EAT/1167/01, [2002] UKEAT 1167 – 01 – 1411, [2003] IRLR 405
England and Wales
CitedBritish Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
CitedBritish Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
CitedRSPCA v Cruden EAT 1986
The dismissal of an employee of the RSPCA was unfair simply because of a delay with no good reason of some 7 months in initiating proceedings. This was even though the employee had suffered no prejudice as a result of the delay.
If a . .
CitedPolkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
CitedInner London Education Authority v Gravit EAT 1988
The standard of reasonableness of an inquiry into an employee’s misconduct can depend upon the state of the case against him or her. Wood J said: ‘in one extreme there will be cases where the employee is virtually caught in the act and at the other . .
CitedFoley v Post Office EAT 1-Mar-1999
. .
CitedFoley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
CitedHussain v Elonex Plc CA 17-Mar-1999
The claimant appealed against a finding that he had not been unfairly dismissed. He said that the procedure adopted had been unfair, since he had not had opportunity to see the statements provided to his employer by independent witnesses of the . .

Cited by:
CitedStyles v London Borough of Southwark EAT 12-Apr-2006
EAT Dismissal for misconduct. Tribunal concluded that whilst there were certain procedural failings, the dismissal was fair. Were they entitled to reach that conclusion or were the failings, considered . .
CitedWilmot and others v Selvarajan EAT 12-Oct-2007
EAT Unfair Dismissal – Reasonableness of dismissal / Automatically unfair reasons
Disability Discrimination – Reasonable adjustments
Race discrimination – Victimisation
Ordinary unfair dismissal . .
CitedAdelusi v HM Prison Service EAT 7-Dec-2007
EAT Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Perversity
Alleged assault by prison officer on prisoner. Dismissal for misconduct. Fairness under Burchell. Whether ET . .
CitedB v A and Another EAT 17-Jun-2008

JURISDICTIONAL POINTS: Extension of time: just and equitable

C was found to have been the subject of sexual harassment. Over a period of years she had been bullied and coerced into . .
CitedMinistry of Defence v Botham EAT 1-Sep-2008
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
The Employment Tribunal did not err when it found the Respondent unfairly dismissed the Claimant, holding him 55% to blame. . .
CitedCommunity Integrated Care Ltd v Smith EAT 23-Sep-2008
Majority of the Tribunal found that the procedures were unfair. The investigation was inadequate and accordingly the conclusion that the employee had committed misconduct was not based . .
CitedLawlor v Lex Plc (T/A RAC Motoring Services) EAT 6-Apr-2004
. .
CitedThe Fire Brigades Union v Croucher EAT 2-Jun-2004
EAT Unfair Dismissal – Reasonableness of dismissal – Failure of Employment Tribunal to apply Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.
EAT Unfair Dismissal – . .
CitedWent v The Governing Body of Sir Roger Manwood’s School EAT 18-Nov-2004
EAT Unfair Dismissal – Constructive dismissal
EAT Unfair Dismissal – Constructive dismissal. . .
CitedDonald v AMP (UK) Services Ltd EAT 16-Dec-2004
EAT Unfair Dismissal – Exclusions including worker . .
CitedBarlow v Clifford and Co (Sidcup) Ltd EAT 28-Sep-2005
EAT Unfair Dismissal – Reasonableness of dismissal. . .
CitedKennedy v Ashfield In2Focus Ltd NIIT 19-Mar-2008
. .
CitedHarding v Hampshire County Council EAT 10-May-2005
EAT Unfair dismissal
Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer’s . .
CitedSalford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .

Lists of cited by and citing cases may be incomplete.

Employment, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.203181