EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellant had been dismissed allegedly for gross misconduct. The Employment Judge held the dismissal to have been unfair because no reasonable employer could have dismissed by reason of that misconduct in the case of an employee like the Claimant with long service, an exemplary record and the support of the tenants at the estate where he was the caretaker. In the context of wrongful dismissal the Employment Judge found that the conduct did not amount to gross misconduct but in the context of unfair dismissal he never explained or discussed why it was unreasonable for the Employer to have characterised the conduct as gross misconduct. Although the well known authorities (British Home Stores v Burchell  ICR 303, Iceland Frozen Foods v Jones  IRLR 563, Foley v Post Office  ICR 1283, Sainsbury v Hitt  ICR 111, London Ambulance Service NHS Trust v Small  IRLR 563, Graham v SSWP  IRLR 759, Barchester Healthcare v Tayeh  IRLR 387 and JJ Food Service v Kefil  IRLR 850) do not suggest that any finding as to the reasonableness of the characterisation of conduct as gross misconduct is called for, section 98(4) requires consideration of ‘all the circumstances’. If the Employer’s view that the misconduct is serious enough to be characterised as gross misconduct is objectively (as opposed to subjectively – see Sandwell v West Birmingham Hospitals NHS Trust v Westwood  UKEAT/0032/09/LA) justifiable then that should be considered as one of the circumstances against which to judge the reasonableness or unreasonableness of treating the conduct as a sufficient reason for dismissal. The Employment Judge had erred by not doing that. He did not however substitute his own view for that of the Employer and his decision on contributory fault was not based on a misdirection. In the event, however, the matter was remitted for a complete re-hearing before a differently constituted Employment Tribunal.
 UKEAT 0272 – 13 – 0701
England and Wales
Updated: 01 December 2021; Ref: scu.522332