The employers had dismissed the employee for misconduct. The Tribunal found that the employers had a genuine belief in the misconduct alleged and there had been a reasonable investigation. The real issue was whether it was reasonable to dismiss for the misconduct alleged. The Tribunal found that no reasonable employer would have dismissed the employee for a one-off incident of misconduct. The EAT reversed that conclusion, on the basis that the Tribunal had impermissibly substituted its own judgment for that of the employer.
Held: The appeal succeeded.
Mummery LJ said: ‘Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst EAT members and the members in the constitutions of this court.
The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee’s conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer’s response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.
Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.
Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision. The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid . .
The ET got off to the right start by asking the correct question: ‘Was this belief founded on reasonable investigation in all [the] circumstances?’ Although the ET expressed concerns about some aspects of the investigation by Ms Addington and said that they felt that it would have been wiser for the school to have appointed as investigator a more neutral party felt, they said that the investigation was exemplary in relation to the other witnesses. It is true that the ET did not directly answer the question which it asked. It should have specifically answered its own question. Although it did not, there is no real basis for doubting that it held that the investigation was reasonable and that that conclusion was not vitiated by subjectivity or substitution.’
Mummery, Moore-Bick, Jackson LJJ
[2011] EWCA Civ 267, [2011] IRLR 414, [2011] ICR 806
Bailii
Employment Rights Act 1996 98(4)
England and Wales
Citing:
Appeal from – London Borough of Brent v Fuller EAT 21-Apr-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
The Employment Tribunal substituted its judgment for that of the management as to the seriousness of the Claimant’s conduct. The employer was entitled . .
Cited by:
Cited – Clarence High School and Another v Boardman CA 15-Mar-2013
The claimant school teacher had been dismissed, after a finding that she had assaulted a pupil. She denied the assualt.
Held: The School’s appeal against the decision of the EAT to re-instate the claim of unfair dismissal succeeded. The EAT . .
Cited – Barclays Bank Plc v Mitchell EAT 11-Feb-2014
EAT Victimisation Discrimination : Whistleblowing – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke – Employment Tribunal failed to explain sufficiently their reasoning on the causation issue . .
Cited – DPP Law Ltd v Greenberg CA 7-May-2021
Respect for ET judgment where prriciples set out
The respondent solicitor, had unlawfully accepted a payment of cash from the father of a criminal Legal Aid client. The firm now appealed from a finding that he had been unlawfully dismissed for gross misconduct.
Held: The appeal succeeded: . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 11 November 2021; Ref: scu.430550
