UNFAIR DISMISSAL; Reason for dismissal; band of reasonable responses; investigation.
In a claim of unfair dismissal, the reason for dismissal relied upon by the employer in terms of section 98 of the Employment Rights Act, 1996 ‘(ERA’) was ‘conduct’. The evidence suggested that the employer had considered a range of matters all of which related to conduct of the employee. Only some of those matters were ultimately mentioned in the letter to the employee which bore to confirm the reason for his dismissal. In these circumstances, it was incumbent upon the Tribunal to make clear and unequivocal findings in fact about precisely what conduct of the employee caused the employer to dismiss. Within his Reasons, the Employment Judge recorded his conclusion that the Appellant genuinely held a belief that the Claimant ‘was guilty of the conduct for which he was dismissed’. Nowhere in his findings in fact, however, did he identify what that conduct was. In the absence of such a finding, the further conclusion that the employer did not have a reasonable basis for holding that belief could not stand.
In any event, and whatever was the reason for the dismissal, the Employment Judge had, in a number of respects, substituted his own view as to what a reasonable inquiry demanded. The appeal was allowed, and the case remitted to a different Tribunal for re-hearing.
Observed: To the extent that Scottish and Southern Energy plc v. Ness UKEATS/0043/10 held that, in a case of dismissal for conduct, there was no requirement on an employer to investigate wholly speculative matters advanced by an employee as possible mitigation, that was correct. If, however, the decision in Ness was intended to suggest that it would never be unreasonable in terms of section 98(4) ERA for an employer to fail to investigate mitigation, such an approach would be inconsistent with what was said in Sainsbury’s Supermarket Limited v. Hitt [2003] ICR 111.
Citations:
[2021] UKEAT 0040 – 19 – 0104
Links:
Jurisdiction:
England and Wales
Employment
Updated: 20 December 2022; Ref: scu.661953