EAT Unfair Dismissal: Reasonableness of Dismissal – Unfair dismissal – conduct dismissal taking into account previous final written warning – fairness of dismissal – section 98(4) Employment Rights Act 1996
The Claimant had been dismissed by reason of his conduct in making a false computer submission taken together with an extant final written warning for similar conduct. The ET found the dismissal was unfair: it was unclear as to the basis for the earlier warning and the ET considered the sanction of a final written warning fell outside the range of reasonable responses; furthermore, the Claimant had not been provided with training on the Respondent’s operating procedures when he had transferred to its employment; more generally, he had been put under pressure and denied the help he had sought and the dismissal was unfair, although he had contributed to his dismissal by 50 per cent.
The Respondent appealed.
Held: allowing the appeal
The ET had taken into account matters that had not been put in issue by the Claimant, specifically the validity of the earlier final written warning and the question of training on the Respondent’s procedures. It had, further, asked itself the wrong question in respect of the earlier warning (see Wincanton Group plc v Stone  IRLR 178 EAT). By so doing, it had erred in its approach to the question of fairness and had substituted its own view for that of the reasonable employer. That said, the Respondent had not established that the conclusion that the dismissal was unfair was necessarily perverse. An ET properly applying the correct test and not taking into account irrelevant matters would still be entitled to consider issues of mitigating circumstances and, even in a gross misconduct case, might be entitled to find these to be such as to take a dismissal outside the range of reasonable responses (Brito-Babapulle v Ealing Hospital NHS Trust  IRLR 854 EAT). The appeal would be allowed but the matter remitted to a different ET for rehearing.
Although strictly unnecessary to address given that conclusion, the ET had also erred in determining the question of any reduction to the Claimant’s award without first permitting the parties to address it on Polkey and contribution.
Updated: 27 January 2022; Ref: scu.572671