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 unfair. The EAT had discounted each of three reasons the tribunal had found for finding the procedures unfair.
Held: The appeal succeeded, and the Tribunal decision was re-instated. The EAT had directed itself correctly as to the law, but had misunderstood the factual basis of the Tribunal’s decision.
Since no evidence had been brought as to issues under section 98A, there was no obligation on the tribunal to consider it.
Tribunals should be careful of compartmentalising evidence for different stages of a hearing where this may result in a witness giving evidence on the same matters more than once, and ‘where there is a split hearing, the parties before the Tribunal clarify with the Tribunal precisely what issues the Tribunal wish to have determined at which stage. If there is doubt about whether a party needs to adduce evidence on a particular point or whether it should be left to a later hearing, that ought to be raised with the Tribunal.’
In misconduct hearings dependant on sharply conflicting witness evidence, it can be proper for a disciplinary body to find the case unproved without having to disbelieve any particular witness.
Elias LJ, Etherton LJ
[2010] EWCA Civ 522, (2010) 114 BMLR 152, [2010] IRLR 721
Bailii
Employment Rights Act 1992 98(1)
England and Wales
Citing:
Appeal from – Salford Royal NHS Foundation Trust v Roldan EAT 2-Sep-2009
EAT UNFAIR DISMISSAL
S.98A(2) ERA
Polkey deduction
Contributory fault
The Employment Tribunal erred when if found procedural defects in the investigation by the Respondent of the allegations . .
Cited – British 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. . .
Cited – 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 . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Cited – Kelly-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 . .
Effetively re-instated – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Applied – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Red Bank Manufacturing Co Ltd v Meadows EAT 1992
A party wishing to complain about a member of the employment tribunal should make his complaint to that tribunal rather than at the EAT. The Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even . .
Cited by:
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Boardman v Nugent Care Society and Another EAT 10-Jul-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal by employee against Employment Tribunal’s finding (majority decision) that claims of unfair and wrongful dismissal fail. Teacher dismissed for gross . .
Cited – Boardman v Nugent Care Society and Another EAT 10-Jul-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal by employee against Employment Tribunal’s finding (majority decision) that claims of unfair and wrongful dismissal fail. Teacher dismissed for gross . .
Lists of cited by and citing cases may be incomplete.
Employment, Health Professions
Updated: 01 November 2021; Ref: scu.414950