EAT UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Contributory fault
CONTRACT OF EMPLOYMENT – Wrongful dismissal
Unfair Dismissal
The Employment Tribunal found that the dismissal (for a reason relating to the Claimant’s conduct) was unfair; the Respondent having failed to carry out a reasonable investigation.
The Respondent appealed against that Judgment, contending that the Employment Tribunal had erred in failing to apply correct legal test in light of the Claimant’s admissions to the Respondent during the investigation and disciplinary process, see RSPB v Croucher [1984] IRLR 425.
Held: Appeal allowed on this ground. Given that the grounds relied on by the Respondent included the admissions made by the Claimant during the internal processes, the question was whether it had carried out a reasonable investigation, tested against the range of reasonable responses of the reasonable employer. Applying Croucher, where the employer’s decision was based on admissions on the part of the employee, it was hard to see why it was not within the range of reasonable responses for it to conclude it was unnecessary to carry out further investigation. The Employment Tribunal felt further investigation would have highlighted other factors which put the Claimant’s conduct in context such that a very different view of his culpability might be taken. The difficulty was that the Employment Tribunal’s conclusions as to what that further investigation would have uncovered were derived from its own findings, on the evidence before it, not that before the Respondent. Adopting that approach, the Employment Tribunal failed to address the significance of the admissions made by the Claimant from the perspective of the Respondent at the time.
Given that failure to separate out the findings and approach relevant to the wrongful dismissal claim from the approach required for the unfair dismissal claim, the Judgment was unsafe. It could not be assumed that the Employment Tribunal would necessarily have reached same conclusion if it had applied the correct test and assessed question of fairness based on what was before the Respondent at the relevant time – including the admissions made by the Claimant – as tested against the range of reasonable responses of the reasonable employer.
As the Employment Appeal Tribunal could not simply substitute its view as to the fairness of the dismissal, the case would need to be remitted for fresh consideration.
Contributory Fault
The Employment Tribunal declined to make a reduction in the Claimant’s compensation due to contributory fault.
The Respondent appealed on the basis that the Employment Tribunal had: (i) erred in assessing the question of contributory fault by limiting consideration to whether the Claimant was blameworthy in respect of the incident when it should properly have considered questions of contribution more generally, including the Claimant’s failure to respond honestly in investigation etc; (ii) reached a perverse conclusion.
Held: It was not right to say that that the Employment Tribunal had confined its consideration only to the Claimant’s conduct in respect of the incident; paragraph 78 (particularly when read together with preceding findings) made clear it did not. The Employment Tribunal plainly had in mind the question that the Claimant’s responses in the internal investigation and disciplinary hearing might have contributed to the decision reached.
On the perversity challenge, however, allowing for the high test to be applied, the Employment Tribunal had lost sight of the significance of the Claimant’s admissions and stance in the internal process. That went to the conclusion on liability (see above) but also raised the question as to how that did not amount to contributory fault on the part of the Claimant.
As the unfair dismissal claim was to be re-heard, this point would be for the Employment Tribunal considering this case at the remitted hearing in any event.
Wrongful dismissal
The Employment Tribunal had concluded that the Claimant had been wrongfully dismissed.
The Respondent appealed on the basis that the Employment Tribunal had failed to properly direct itself as to the correct legal test and/or failed to give adequate reasons and/or reached a perverse conclusion.
Held: It was right to say there was no self-direction as to the correct legal test. It might be said that the test was obvious and did not need re-stating but the reasons were inadequate to properly explain how the Employment Tribunal had approached this task and to demonstrate that it had taken into account all relevant factors. The conclusion was not necessarily perverse. This was also a point for the Employment Tribunal on the remitted hearing of both claims.
Disposal
Appeal allowed on all grounds. Claims of unfair and wrongful dismissal remitted to a differently constituted Employment Tribunal for re-hearing.
Eady QC HHJ
[2015] UKEAT 0344 – 14 – 2301
Bailii
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.544853