EAT UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
PRACTICE AND PROCEDURE – Review
Dishonesty
The concept of subjective dishonesty did not mean that the Employment Judge was bound to consider the approach taken in John Lewis plc v Coyne [2001] IRLR 139, which stated that, where an issue arose as to whether conduct might be dishonest or not, that should be determined by reference to what had been said by Lord Lane LCJ in R v Ghosh [1982] QB 1053 at paragraphs 162 and 163. The issue did not arise in the instant case and did not need to be decided but it was doubtful how useful a jury direction in a criminal case was in the employment context.
Reasonableness of dismissal – Inadequacy of reasons
The Judgment overall does not say how important issues have actually been resolved. It asserts conclusions, which it adopts from the Respondent’s case and submissions, but that does not make for an adequately reasoned decision. The Written Reasons did not fulfil the criteria for a properly reasoned decision, either as set out in paragraph 62(5) of the Employment Tribunal 2013 Rules or in accordance with the familiar authorities of Meek v Birmingham City Council [1987] IRLR 250 and Greenwood v NWF Retail Ltd [2011] ICR 896. Case remitted for a complete re-hearing.
Application for review of EAT Judgment
That the appeal succeeded on the above ground did not mean it must succeed on the second ground of appeal, namely that the Employment Judge must have fallen into the error identified in Whitbread plc t/a Whitbread Medway Inns v Hall [2001] IRLR 275 and Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854 of concluding that where there was an honest and genuine belief that the employee had committed an act of gross misconduct then the dismissal must be axiomatically fair. It was impossible to be confident that was the case because of the inadequacy of reasons; the factors relating to whether or not this Tribunal should review its own decisions set out at paragraph 47 of the judgment in Zinda v Governing Body of Barn Hill Community High School [2011] ICR 174 were considered.
Hand QC HHJ
[2015] UKEAT 0320 – 14 – 2001
Bailii
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.544854
