EAT Unfair Dismissal: Reasonableness of Dismissal – Contributory fault – Polkey deduction
The ET had not made an express finding as to the reason for the dismissal but the reasoning suggested that it had concluded that the Respondent had failed to satisfy it that it had a genuine belief in the conduct for which it had purported to dismiss the Claimant; the findings suggested that the ET considered that the Respondent had acted in bad faith and was determined to find that the Claimant had been guilty of gross misconduct (regardless of the evidence in his favour).
The suggestion of bad faith had not been put to the Respondent’s witnesses and that procedural error was (given the centrality of the point to the ET’s findings) rendered the decision unsafe.
Moreover, the ET’s findings – in particular, its expression of its views as to the quality and weight of the evidence – demonstrated that it had fallen into the substitution mind-set. Rather than assessing the Respondent’s conduct and decision-making against the range of reasonable responses, the ET was submitting it to the test of what it considered the reasonable employer would have done or decided; rather than a range, it was applying a single standard, as set by the ET’s own views on the evidence and the procedure to be followed.
In the circumstances, the ET’s liability Judgment could not stand.
Although unnecessary given that conclusion, the EAT would also have been minded to allow the Respondent’s appeal on the question of contributory conduct (the ET having apparently restricted its consideration of the evidence to that adduced ‘live’ before it) and on Polkey (the ET having apparently taken the view that Polkey was not engaged given its finding that the dismissal was substantively (not merely procedurally) unfair).
Appeals allowed. Matter remitted to a different ET for re-hearing.
[2015] UKEAT 0130 – 15 – 2807
Bailii
England and Wales
Employment
Updated: 04 January 2022; Ref: scu.552838