EAT UNFAIR DISMISSAL – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Contributory fault
PRACTICE AND PROCEDURE – Review
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Unfair dismissal – fairness of dismissal (Employment Rights Act 1996 (‘ERA’) section 98(4)) and band of reasonable responses test – whether the ET was guilty of a substitution mindset.
Wrongful dismissal – whether the ET adopted the correct approach and reached a permissible conclusion, taking into account all relevant material.
Contributory fault – sections 122(2) and 123(6) ERA – whether the ET adopted the correct approach, taking into account all relevant material and/or whether it gave adequate reasons to explain its conclusion.
Reconsideration – whether the ET erred (1) in extending time for the reconsideration application; (2) in failing to reconsider its approach on the evidence before it (in particular given the Claimant’s admissions) and/or as to the adequacy of its reasons.
Adequacy of reasons
The Claimant was a long-serving senior Radiographer who, when preparing her defence to earlier disciplinary proceedings, had utilised confidential patient information. The Respondent considered this was conduct in breach of its policies albeit the disciplinary investigation acknowledged that those policies did not expressly address the position of employees facing disciplinary proceedings; the decision was taken that the Claimant should be summarily dismissed by reason of her gross misconduct; a decision upheld on appeal.
The ET found the decision that the Claimant should be dismissed had been made with a closed mind: the relevant manager had considered a breach of the policy in respect of confidential patient information justified summary dismissal and did not consider the Claimant had not acted wilfully and thus was not guilty of a repudiatory breach of contract such as to warrant summary dismissal. In any event, the Claimant had not been culpable so as to justify any reduction for contributory fault.
The Respondent applied for the ET to reconsider its Judgment out of time, for reasons set out in its application letter. Referring to that letter, the ET extended time for the application but did not consider any proper basis had been demonstrated for it to reconsider its earlier Judgment.
The Respondent appealed against both Judgments. The Claimant cross-appealed against the ET’s Decision to extend time for the reconsideration application.
Held: dismissing the appeal against the ET’s finding of liability for unfair dismissal but otherwise allowing the appeals and dismissing the cross-appeal.
Given the ET’s permissible findings of fact (against which there was no challenge) as to the way in which the Respondent had reached the decision to dismiss, it had been entitled to conclude that the Respondent had adopted an unreasonably constrained approach, which failed to allow for lesser sanctions and ignored mitigating factors identified as potentially relevant in the investigation report. The ET had not been guilty of falling into the substitution mindset but had properly carried out its task in applying the band of reasonable responses test. The appeal against the liability finding on the unfair dismissal claim was therefore dismissed.
The ET’s reasoning on the wrongful dismissal claim and on the question of contributory fault did not, however, demonstrate it had applied the correct approach, considering all the relevant material before it; alternatively failed to adequately explain how the ET had approached its task and reached its conclusions. The Reconsideration Judgment did not rectify these failings and was thus also defective. The Respondent’s appeals in these respects would be allowed.
Even if the cross-appeal raised a matter that the Claimant was entitled to take on appeal, the ET’s reasoning expressly referenced the Respondent’s detailed application for an extension of time and – adopting a proportionate approach (as the ET was entitled to do) – was adequate to the task. The cross-appeal was duly dismissed.
Citations:
[2017] UKEAT 0164 – 16 – 0501
Links:
Jurisdiction:
England and Wales
Employment
Updated: 29 January 2022; Ref: scu.574087