EAT Contract of Employment : Wrongful Dismissal – UNFAIR DISMISSAL
Compensation
Contributory Fault
As explained at paragraphs 111 and 112 of the judgment in Sandwell and West Birmingham Hospitals NHS Trust v Mrs A Westwood [2009] UKEAT 0032/09/172 gross misconduct might take one of two forms, deliberate misconduct or gross negligence: but that possible alternative does not justify an Employment Tribunal not making any factual finding as to conduct on the basis that it must be one form of gross misconduct if it is not the other, which is how the matter was approached by the Employment Tribunal in the instant case. Such an approach is erroneous.
Moreover it leaves issues relating to possible awards and the reduction of awards by reason of fault on the part of the employee without any proper factual matrix and in terms of a reasoned decision compliant with the common law requirements set out in Meek v Birmingham City Council [1987] IRLR 250 or with the Employment Tribunal Rules (see Greenwood v NWF Retail Ltd [2011] ICR 896) makes it impossible to know either why it is had been concluded that the employee’s conduct was the sole cause of the dismissal (section 123(6) of the Employment Rights Act 1996) or why it was not ‘just and equitable’ for the employee to receive a basic award (section 122(2) of the Employment Rights Act 1996) (paragraphs 32, 36, 62 and 63 of the judgment of this Tribunal in Lemonious v Church Commissioners UKEAT/0253/12/KN considered and applied).
The appeal was allowed on the basis of inadequacy of reasons and remitted to the same Employment Tribunal for findings of fact to be made and for re-consideration of the issues of wrongful dismissal and contributory fault.
Hand QC J
[2014] UKEAT 0381 – 13 – 0104
Bailii
England and Wales
Employment, Damages
Updated: 02 December 2021; Ref: scu.523397