The Claimant was dismissed for making homophobic remarks to a tenant (‘T’) of one of the Respondent’s properties. In upholding the Claimant’s complaint of unfair dismissal, the Employment Tribunal (‘ET’) found that, having accepted that other evidence demonstrated the Claimant was not in fact homophobic, the Respondent had not established a genuine belief that he was guilty of the conduct alleged. In any event, considering the question of fairness, the ET concluded that the Respondent had acted unreasonably in accepting T’s account, when she had refused to provide further evidence. The ET further found that the Respondent’s investigation was unreasonable, and it had been outside the range of reasonable responses to have dismissed an employee with 14 years’ service. The ET also considered whether there should be any Polkey reduction, but found there was no likelihood of dismissal if a fair procedure had been followed. The Respondent appealed.
Held: allowing the appeal
In finding that the Respondent had not established the reason for the Claimant’s dismissal, the ET had failed to explain why it rejected the evidence given as to the decision-taker’s stated belief in the Claimant’s misconduct. The ET had inferred that acceptance that the Claimant was not in fact homophobic necessarily meant that the decision-taker could not have believed that he had made homophobic remarks; that, however, treated evidence going to propensity to be determinative, something the decision-taker had expressly rejected. There was no proper evidential basis for the ET’s conclusion on the question of reason.
As for the issue of fairness, the evidence did not go so far as to establish that T had simply refused to give further evidence; merely that she had declined to do so due to personal circumstances. More generally, in its assessment of T’s account, the ET had failed to demonstrate good reasons for rejecting the view adopted by the Respondent. There was no proper basis for concluding that T’s account had been embellished; the ET itself having only found there to be ‘slight differences’ in the evidence she had given in her two interviews. On this, and its view as to T’s potential ulterior motive, the ET had impermissibly substituted its view for that of the Respondent in terms of T’s credibility and/or had reached a perverse conclusion. The ET had further fallen into the error of substitution, in finding the Respondent had acted unreasonably in failing to further investigate whether an anecdote T said had been shared by the Claimant might have been brought to her attention by another tradesperson. The Respondent had considered this possibility but rejected it, as it could not explain why T would have known that the Claimant was involved in the incident in question; the ET had failed to apply the band of reasonable responses test to the decision taken by the Respondent on this point, preferring its own view as to the further steps required. The ET’s finding on sanction revealed a similar error of substitution, failing to recognise the particular issues facing the Respondent as a social housing provider. In the alternative, the ET’s Polkey finding also revealed an inconsistency of reasoning.
Although the appeal would be allowed, it could not be said that the ET’s findings meant there was only one answer to this claim. The case would be remitted to a differently constituted ET for re-hearing.
[2020] UKEAT 0059 – 19 – 0303
Bailii
England and Wales
Employment
Updated: 12 November 2021; Ref: scu.653271