EAT RIGHT TO REPRESENTATION, APPROACH TO POLKEY
TRIBUNALS MAKING FINDINGS FOR WHICH THERE IS NO EVIDENCE
The Appellant employer raised five Grounds of Appeal against a decision that a dismissal was unfair, on each of which it succeeded. The principal ground for dismissal upon which the Tribunal relied had no evidence to support it. Further and separately, there was insufficient material to show that the facts here fell within an exceptional class of case, namely one in which the decision to dismiss from employment was also a decision which created a legal barrier to the Claimant working again as a Probate Register, such that Art.6 ECHR guaranteed a right of legal representation at a disciplinary hearing. Further and separately, the Tribunal could not assume without careful consideration that it would necessarily be unfair for there to be no legal representation even if the decision to dismiss did create such a legal barrier. Next, the Tribunal approached Polkey by applying the wrong legal test (balance of probability, not sliding scale of chance), and finally took an erroneous approach to identifying whether the employee had been guilty of gross misconduct, since it did not properly consider whether she had been in repudiatory breach – the ‘last straw’ doctrine applied as much to an employer as an employee, such that the fact of further misconduct should have been seen as repudiatory in the light of an unexpired final written warning.
Appeal allowed: case remitted to a fresh Tribunal.
Observations about whether a passage in Harvey re Polkey might be capable of misleading.
Langstaff P J said: ‘Surprisingly for a conduct dismissal, the analysis by the Tribunal did not address in turn the issues to which case law has established a Tribunal should pay regard: whether the employer had a genuine belief that the employee was guilty of the misconduct alleged; whether that was based on reasonable grounds; after a reasonable investigation; and whether the decision to dismiss was within the range of reasonable responses open to an employer in respect of the misconduct.’
Judges:
Langstaff P J
Citations:
[2012] UKEAT 0068 – 12 – 1411
Links:
Jurisdiction:
England and Wales
Citing:
Cited – G, Regina (on The Application of) v X School SC 29-Jun-2011
The claimant was employed as a teaching assistant. He was suspended after allegations of sexual misbehaviour with boy at the school. He refused to take part in the disciplinary proceedings until the police investigation was concluded. A decision was . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 09 November 2022; Ref: scu.466343