EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Compensation
Contributory fault
The Employment Judge erred in substituting his view of the fairness of the Claimant’s dismissal for gross misconduct in entering a Class C sewer without breathing apparatus contrary to an instruction rather than considering whether the conclusion on sanction of dismissal was within the range of reasonable responses of the reasonable employer in the circumstances. The conclusion of the EJ that the dismissal of the Claimant was unfair was based on erroneous views of the facts as found by him. Further, the alternative finding of unfair dismissal for difference in treatment of another employee was also reached on the basis of an erroneous view of the findings of fact and was unsustainable. Finding of unfair dismissal set aside and decision that the Claimant had been fairly dismissed substituted. The high hurdle in Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 was reached in this case.
If the appeal on liability had not been allowed:
(a) the deduction for contributory fault was based on an erroneous view of the facts and would be increased to 50%. Hollier v Plysu Ltd [1983] IRLR 260 applied;
(b) appeal from withdrawal factor of 20% from the pension scheme dismissed;
(c) appeal from compensation in respect of a lump sum payable under the pension scheme dismissed.
Cross-appeal from reduction in awards for contributory fault dismissed.
Slade DBE J
[2013] UKEAT 0011 – 13 – 0904
Bailii
England and Wales
Employment
Updated: 02 December 2021; Ref: scu.523673