Unfair Dismissal – Reasonableness of Dismissal – Contributory fault – The decision that the Claimant was unfairly dismissed and had not contributed through his fault to his dismissal was a judgment that the Tribunal was entitled to make on the facts before it. Although it had perhaps veered towards the substitution mindset in its analysis of the misconduct of the Claimant that led to his dismissal there were several features that entitled the Tribunal to conclude that the dismissal was unfair and outside the band of reasonable responses. Those included the failure of the Respondent to consider the Claimant’s 27 years’ service, his personal mitigation and health problems and steps he was taking to address the issues that led to the outburst that amounted to bullying behaviour and the insight he had shown into the incident. The Tribunal had also found the appeal process to have been a charade and on the evidence, there could be no appeal from that finding Newbound v Thames Water Utilities Ltd [2015] IRLR 734 CA followed.
The decision not to make a reduction for contributory fault was the Tribunal’s to make in accordance with section123 ERA and London Ambulance Service NHS Trust v Small [2009] IRLR 563, CA. Whilst other Tribunals might have taken a different view, the Tribunal has a wide discretion and the Tribunal’s Judgment did not clear the high hurdle of perversity.
[2018] UKEAT 0192 – 17 – 1009
Bailii
England and Wales
Employment
Updated: 06 December 2021; Ref: scu.632224