EAT CONTRACT OF EMPLOYMENT – Wrongful dismissal
Unfair Dismissal – Polkey Reduction – Contributory Fault – Wrongful Dismissal
The Claimant was dismissed for a reason relating to her conduct, the Respondent having reasonably concluded there was a breakdown of trust and confidence arising from her inconsistent and suspicious answers to questions in circumstances relating to what appeared to be the selling of possibly stolen goods from the Respondent’s store (where the Claimant was employed) through an eBay account registered to the Claimant’s address. The ET rejected the Claimant’s various procedural objections but went on to find the Respondent had been guilty of ‘fundamental failures’, not cured by the appeal (which the Claimant had failed to attend). On that basis, it concluded the dismissal had been unfair. It further held that, had the Claimant’s husband been contacted, there was a 75% chance he would have responded and the issues resolved; thus a Polkey reduction should be limited to 25%. As for any reduction in respect of the Claimant’s contribution, allowing that her failure to call her husband as a witness and her inconsistent, suspicious and unhelpful answers amounted to culpable behaviour contributing to her dismissal, the reduction should be 50%. On the wrongful dismissal claim, the ET found the Claimant had acted in an unhelpful, inconsistent and suspicious manner in her response to the Respondent, but that was not sufficiently grave to justify her summary dismissal.
On the Respondent’s Appeal.
Held: Allowing the appeal.
Unfair Dismissal
The ET’s conclusion was based on a finding that the Respondent had failed to seek evidence from the Claimant’s former husband (who, she contended, had established the eBay account from her address without her knowledge). That, however, was perverse given the ET’s earlier finding of fact that the Respondent had pushed for the contact details of this witness and it was the Claimant herself (who had the contact details) who declined to pass these on and who failed to adduce evidence from her former husband (with whom she was in contact) at the second investigation meeting or the disciplinary or appeal hearings. The finding that the Respondent did not take up the Claimant’s offer to pass on the investigator’s contact details to her former husband also went beyond the evidence, which showed this had been left to the Claimant. The ET’s reasoning further demonstrated it had fallen into the error of substituting its view for that of the employer: it failed to ask whether the Respondent’s response fell within the band of reasonable responses but judged the Respondent against what the ET itself considered would have been the correct course. The finding of unfair dismissal therefore could not stand.
Although strictly unnecessary to address, the ET’s conclusions in Polkey and contributory conduct were also perverse. It was perverse to find, on the question of a Polkey reduction, that there was a 75% chance the Claimant’s husband would have responded in circumstances where the Respondent had made plain its wish to speak to him, had positively sought his contact details and where there was nothing to prevent the Claimant herself calling him as a witness. It was further perverse to conclude the Respondent had not remedied any failings on appeal when it was the Claimant who failed to attend or provide any materials (and the Respondent had – as the ET found – reasonably proceeded in her absence).
As for contributory fault, the 50/50 split in terms of culpability in this regard was perverse given the ET’s conclusions in respect of the Claimant’s behaviour. Her husband was not an employee of the Respondent. On the other hand, the Claimant had the ability to make contact with him and to adduce evidence from him but chose not to do so. There was no explanation as to why the ET’s findings in this respect would justify an equal sharing of responsibility.
Wrongful Dismissal
The ET had accepted that the Claimant’s approach during the investigation was unhelpful, inconsistent and raised suspicion and that there were reasonable grounds for the Respondent to conclude this went to trust and confidence. Its finding that this was not sufficiently grave to justify summary dismissal was undermined by its erroneous approach to the Respondent’s culpability, and this rendered its conclusion on the wrongful dismissal claim unsafe.
Disposal
Allowing for the limitations on the EAT’s powers, the conclusion on the unfair dismissal claim was solely founded upon the perverse finding that the Respondent had been guilty of failing to seek evidence from the Claimant’s former husband. Once that was corrected, on the ET’s own conclusions, there could be no finding of unfairness, and a finding that the Claimant’s claim was dismissed would be substituted.
Similarly, on the wrongful dismissal claim, the findings as to the Claimant’s conduct remained. The only question was as to the gravity of that conduct. As the ET had accepted that this was sufficient to provide reasonable grounds for the Respondent to conclude that trust and confidence was undermined, and as that went to the heart of a contract of employment, it would be perverse to find other than that the Respondent was justified in terminating the contract summarily, and, again, that conclusion would be substituted for the ET’s decision in this regard.
Eady QC HHJ
[2015] UKEAT 0083 – 15 – 1812
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565094