Unfair Dismissal
The Respondent appealed the Tribunal’s decision that the Claimant had been unfairly dismissed. The Tribunal had concluded that having regard to s. 98 of the Employment Rights Act 1996 the Respondents decision to dismiss fell outside the band of reasonable responses. On Appeal the Respondent argued that the Tribunal had fallen into a substitution mind-set. Held (1) that the Respondent had not adopted a substitution mind-set but in respect of one of the grounds of dismissal had failed to recognise that the Claimant who was both an employee and director of the Respondent, had participated in a meeting with fellow directors where a decision had been taken that he should not take a particular course of action and that such a decision was in law binding on him. In this situation it was not open to him to disobey the instruction notwithstanding his personal wish to do so; (2) that while there were dangers in relying on a written statement given by a witness in lieu of attending the tribunal such evidence was in principle admissible even when it had been taken by the HR consultant who conducted the disciplinary hearing. Where, as here, the statement had been taken for the purposes of another disciplinary matter the statement could not be said to transgress the ACAS Code and in any event the circumstances did not disclose any risk of unfairness; (3) that while the Tribunal’s conclusion that the outcome of the disciplinary process had been pre-determined by a senior manager of the Respondent might be thought open to doubt, in the absence of any challenge to the Tribunal’s conclusion it was not open to the EAT to disturb the Tribunal’s conclusion to that effect; and (4) that the Tribunal was entitled to reject the Respondent’s conclusion that the Claimant had breached the law in installing a covert camera in his office while he was suspended from duty.
Citations:
[2021] UKEAT 00029 – 18 – 2801
Links:
Jurisdiction:
England and Wales
Employment
Updated: 06 December 2022; Ref: scu.661685