J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt: CA 18 Oct 2002

Reasobaleness of Investigation Judged Objectively

The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct which consisted of stealing an article found in his locker at work, because other employees who might have had an opportunity to put the allegedly stolen items in the employee’s locker had not been interviewed and the possibility of a plant had not been eliminated.
Held: The rule that the tribunal must not seek to substitute its own view for that of the employer applied also when looking at the reasonableness of the method used in investigating the complaint which underlay the dismissal. The standard is objective: that of the reasonable employer. The employer’s reaction and investigation had been within the range of reasonable responses available to an employer: ‘if the correct approach is taken to the application of the test laid down by the Court of Appeal to the facts of this case, the only conclusion which a reasonable Tribunal could reach is that the investigation in this case was reasonable in all the circumstances. The position is that the Employment Tribunal’s decision was legally flawed by the application of the wrong test. If one looks at the findings of fact the position is as stated by the Chairman in his dissenting conclusions. . . Sainsbury’s were reasonably entitled to conclude on the basis of judgment of this investigation that Mr Hitt’s explanation was improbable. The objective standard of the reasonable employer did not require them to carry out yet further investigations at the time, the majority in the Employment Tribunal in their view, considered ought to have been carried out.’
‘The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason.’

Ward, Mummery, Jonathan Parker, LLJ
Times 14-Nov-2002, [2002] EWCA Civ 1588, [2003] ICR 111, [2002] Emp LR 1273, [2003] IRLR 23
England and Wales
CitedFoley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Appeal fromSainsbury’s Supermarkets Ltd v Hitt EAT 8-Nov-2001
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
ApprovedBritish Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
ConsideredMidland Bank Plc v Madden EAT 7-Mar-2000
. .
CitedHaddon v Van Den Bergh Foods Ltd EAT 10-Nov-1999
An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided. . .
CitedWhitbread Plc (Trading As Whitbread Medway Inns) v Hall CA 27-Feb-2001
The employer appealed against a finding of unfair dismissal.
Held: In deciding whether the applicant had been unfairly dismissed for misconduct, the tribunal was free to consider whether the procedure adopted by the employer was reasonable, . .

Cited by:
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The applicant claimed unfair constructive dismissal.
Held: The appeal failed. McMullen QC J said: ‘It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation . .
CitedClaridge v Daler Rowney Ltd EAT 4-Jul-2008
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The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
CitedHarding v Hampshire County Council EAT 10-May-2005
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Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer’s . .
CitedDowney v Department for Regional Development FENI 28-Jul-2006
. .
CitedGAB Robins (UK) Ltd v Triggs EAT 13-Jun-2007
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CitedWoods v Department of Agriculture and Rural Development NIIT 21-Jun-2007
. .
CitedElliott v Montupet (UK) Ltd NIIT 26-Jul-2007
. .
CitedClydeport Ltd v Sinnamon and Another EAT 8-Oct-2007
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CitedRoadbeach Ltd v Werner EAT 11-Oct-2007
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Tribunal holds that the dismissal was unfair because the employer failed to arrange an oral hearing of an appeal against dismissal and determined it on the papers.
CitedWright v Stevenson and Reid NIIT 12-Oct-2007
. .
CitedFirst West Yorkshire Ltd (T/A First Leeds) v Haigh EAT 20-Nov-2007
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Where an employee is long-term absent on grounds of ill health, and his pension scheme contains provisions entitling him to an ill health pension on grounds . .
CitedLeonard v Department for Social Development NIIT 29-Nov-2007
. .
CitedHarlington Hospice Association v Mitchell EAT 15-Feb-2008
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The claimant was found to have been unfairly dismissed. Unusually the Tribunal concluded that she had committed gross . .
CitedCentrewest Buses Ltd v Alas EAT 5-Mar-2008
EAT Unfair dismissal: Reasonableness of dismissal
The Employment Tribunal erred in its approach by going beyond the evidence considered by the Respondent at dismissal and appeal stages and itself . .
CitedMillbrook Proving Ground Ltd v Jefferson EAT 11-Mar-2008
EAT Unfair Dismissal
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
An employee was dismissed for two incidents of what the employers considered to be gross . .
CitedSampson Walker v ICTS (UK) Ltd NIIT 2-Apr-2008
. .
CitedCentral and North West London Mental Health NHS Trust v Amara EAT 23-May-2008
EAT Unfair Dismissal – Reasonableness of dismissal – contributory fault
R was a nurse at a mental hospital. A patient alleged that he had met R outside the hospital and R had taken him to his home where . .
CitedMakro Self Service Wholesalers Ltd v Rees EAT 20-Jun-2008
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Conduct dismissal. Burchell test. Reasonableness of grounds for belief in misconduct. Misapplication of (neutral) burden of proof under s98(4) ERA.
CitedRogan v South Eastern Health and Social Care Trust NIIT 29-Aug-2008
. .
CitedMinistry of Defence v Botham EAT 1-Sep-2008
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
The Employment Tribunal did not err when it found the Respondent unfairly dismissed the Claimant, holding him 55% to blame. . .
CitedDobbin v Citybus Ltd CANI 22-Sep-2008
. .
CitedCommunity Integrated Care Ltd v Smith EAT 23-Sep-2008
Majority of the Tribunal found that the procedures were unfair. The investigation was inadequate and accordingly the conclusion that the employee had committed misconduct was not based . .
CitedGerstenkorn v Belfast Health and Social Services NIIT 13-Oct-2008
. .
CitedHarris v The Multiple Sclerosis Society NIIT 14-Oct-2008
. .
CitedQuinn v Ni Trucks Ltd NIIT 27-Oct-2008
. .
CitedManchester Airport Plc v McCall EAT 5-Nov-2008
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Majority view of Tribunal that the investigation was insufficient and dismissal was an impermissible sanction was incorrect in that they did not apply test . .
CitedCompass Group UK and Ireland Ltd (T/A Scolarest) v Celebi EAT 22-Jan-2009
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
The Tribunal were incorrect in imposing their own view of the fairness of dismissal and failed to consider how a reasonable employer would have acted. . .
CitedSmith v Wrightbus Limited NIIT 17-Feb-2009
. .
CitedG, Regina (on the Application of) v X School and Another Admn 18-Mar-2009
The claimant was employed as a music assistant. He was accused of sexual misconduct. He complained that he had not been allowed legal representation at the disciplinary hearing.
Held: Whilst it is standard practice for legal representation not . .
CitedAsda Stores Ltd v Green EAT 18-Mar-2009
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Tribunal mis-states test and reasons in a way indicative of substituting its own judgment rather than considering whether the employer has acted reasonably. . .
CitedMallon v Nie Powerteam Ltd NIIT 26-Mar-2009
. .
CitedWest Coast Trains Ltd (T/A Virgin Trains) v Tombling EAT 2-Apr-2009
EAT UNFAIR DISMISSAL: Reasonableness of dismissal
Employee dismissed for deliberately breaking the IRIS screen in her buffet car on one of the Appellant’s trains. The Employment Tribunal found that the . .
CitedBournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
CitedMetrobus Ltd v Bauerfield EAT 1-May-2007
EAT Unfair dismissal – Contributory fault/ Polkey deduction
Automatic unfair dismissal under s.98A(1) ERA. Order for reinstatement made. ET found no Polkey deduction after considering Burchell test. . .
CitedPremier Foods Plc v Garner EAT 20-Mar-2007
EAT Unfair Dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal
Wide-ranging grounds of appeal concerning the standard DDP, automatic unfair dismissal, unfair . .
CitedEvans v Royal Mail Group Plc NIIT 20-Mar-2007
. .
CitedBarratt v Accrington and Rossendale College EAT 3-Nov-2006
EAT Contract of Employment – Wrongful dismissal,br />Unfair Dismissal – Constructive dismissal,br />Disability Discrimination – Reasonable Adjustment
Unfair dismissal and disability discrimination. Claimant . .
CitedThe State Hospitals Board for Scotland v Hughes EAT 8-Feb-2007
EAT In a claim for unfair dismissal where the claimant had written a document in which other employees were criticised and which gave rise to various concerns on the part of his employers, the Employment Tribunal . .
CitedHonda Motor Europe v McMillan EAT 22-Mar-2007
EAT Unfair dismissal – Reasonableness of dismissal

Reasonableness of dismissal under s.98(4) ERA. ET took into account irrelevant factors and failed to take into account relevant factors when considering . .
CitedArriva Scotland v Weir EAT 10-Feb-2006
EAT The claimant was dismissed on ill health grounds. The tribunal found that the respondents had acted unreasonably in doing so and that her dismissal was unfair. The respondents appealed and the Employment . .
CitedTesco Stores Ltd v Pryke EAT 10-May-2006
EAT The Tribunal found that the employers’ dismissal of the employee after his lorry had turned over at a roundabout was unfair because their investigation of the facts had been ‘fundamentally flawed’. Held on . .
CitedDobbin v Citybus Ltd FENI 3-Mar-2006
. .
CitedFirst Scotrail Ltd v Griffen EAT 7-Mar-2006
EAT Unfair Dismissal – Reasonableness of dismissal. Claimant, a train conductor was dismissed for misconduct where inappropriate behaviour towards a young female passenger travelling alone was alleged. The . .
CitedWest Coast Trains Ltd v Murphy EAT 4-Apr-2006
EAT The claimant, a service manager employed on the respondents’ trains, was dismissed on conduct grounds for having sworn at and been threatening towards a customer. She claimed she had been unfairly dismissed . .
CitedPurdy v Shorts Plc NIIT 2-Jun-2006
. .
CitedMasterfoods (A Division of Mars UK Ltd) v Wilson EAT 7-Aug-2006
EAT Unfair dismissal – Reasonableness of dismissal; Procedural
Fairness/automatically unfair dismissal
Practice and Procedure – Amendment
Employment Tribunal’s conclusion of unfairness could not . .
CitedEast Lancashire Coachbuilders v Hilton EAT 24-Aug-2006
EAT The Claimant, a director of the Respondent, was dismissed for gross misconduct. There were grounds upon which the Respondent could reasonably have treated his conduct as justifying immediate dismissal for a . .
CitedKelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
CitedQueen Elizabeth Hospital NHS Trust v Ogunlana EAT 6-Oct-2006
EAT Unfair Dismissal – Reasonableness of dismissal
Unfair Dismissal – Contributory fault
Conduct UD. ET substituted their view for that of employer in holding no reasonable investigation and dismissal . .
CitedWest Yorkshire Magistrates Courts Service v Smith EAT 19-Dec-2005
EAT Unfair dismissal claim. At end of hearing Tribunal gave brief and reasons for conclusion that no reasonable employer could have regarded dismissal as appropriate. Subsequently after being asked to give . .
CitedBridgewood Trust v Owen EAT 20-Oct-2005
EAT Unfair Dismissal: Reason for Dismissal and Reasonableness of Dismissal; Practice and Procedure: Bias, Misconduct, and Procedural Irregularity
Challenge to finding of finding of unfair dismissal – over 50 . .
CitedSurrey County Council v Henderson EAT 3-Nov-2005
EAT Contract of Employment and Unfair Dismissal
Confidentiality of Complainants – need to inform employee of case against him. Application of HSBC v Madden; Sainsbury v Hitt. Range of reasonable responses. . .
CitedHachette Filipacchi UK Ltd v G Johnson EAT 14-Dec-2005
EAT Unfair Dismissal – Reasonableness of dismissal. Unfair Dismissal and Redundancy
In paragraph 22 of its Reasons the Tribunal appears to have decided that the employer was required to give the employee . .
CitedSayers v Loganair Ltd EAT 17-May-2005
EAT Reason for dismissal – Reasonableness of dismissal – The claimant was a pilot whose licence became restricted and he was dismissed. He claimed that he had been unfairly dismissed in respect that his dismissal . .
CitedAlvis Vickers Limited v D B Lloyd EAT 16-Jun-2005
EAT Respondent dismissed for redundancy. Procedure unfair in that the appeal process was not properly conducted. Employment Tribunal made no Polkey deduction. On proper analysis of fact if a fair procedure had . .
CitedPrescott v MSO Cleland Ltd NIIT 28-Jun-2005
. .
CitedEmerson v Northern Ireland Ambulance Service FENI 13-Sep-2005
. .
CitedBritish Gas Services Ltd T/A Scottish Gas Services v Park EAT 30-Jun-2005
Reason for dismissal
Reasonable adjustments
Unfair dismissal and disability discrimination. Claimant employed as a service . .
CitedAbbey National Plc v Kaur EAT 3-Aug-2005
EAT Unfair Dismissal: Reasonableness of Dismissal
(1) Employment Tribunal did not err in finding that Claimant was unfairly dismissed. As a matter of construction, the disciplinary procedure required a . .
CitedWilliam Hicks and Partners (A Firm) v G Nadal EAT 16-Aug-2005
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Tribunal did not apply our views on unfair dismissal. But applied range of reasonable responses. Denial of opportunity to employee to attend disciplinary hearing rendered procedure . .
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EAT Unfair Dismissal – Reasonableness of dismissal. . .
CitedCentre West London Buses Ltd v Balogun, Ambali EAT 19-Oct-2005
EAT Unfair Dismissal: Reasonableness of Dismissal
Unfair Dismissal. Conduct. Procedural fairness. Range of reasonable responses test applied. Employment Tribunal decision reversed.
Stolt Offshore Ltd v Fraser EAT 26-Feb-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
CitedAziz v South Tyneside Health Care Trust EAT 27-Feb-2003
EAT Unfair Dismissal – Procedural Fairness . .
CitedJayasuriya v Meat Hygiene Service EAT 11-Mar-2003
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
CitedWarren James Jewellers Ltd v Christy EAT 11-Mar-2003
EAT Unfair Dismissal – Reasonableness of dismissal . .
CitedR F Brookes Ltd v Bachra EAT 3-Apr-2003
. .
CitedChief Constable of Hampshire Constabulary v C B Eastman EAT 2-May-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
CitedSalford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
CitedPunch Pub Company Ltd v O’Neill EAT 23-Jul-2010
Reasonableness of dismissal
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The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
CitedShrestha v Genesis Housing Association Ltd CA 18-Feb-2015
The appellant had been dismissed for alleged dishonest expenses claims. He was said to have claimed for more miles travelled than would be calculated by AA or RAC services. He said that ony two such allegations were put to him for explanation, but . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 02 November 2021; Ref: scu.178141