P v Nottinghamshire County Council

An employer may reasonably accept a guilty plea or criminal conviction as establishing that the employee committed the offence. The investigative principles applicable where guilt has not been established do not govern that situation.

Where misconduct makes an employee unsuitable for the existing job, fairness may require a sufficiently large and well-resourced employer to consider suitable alternative employment. The employer may give notice before completing that investigation, provided it investigates before the notice takes effect. The tribunal must assess the reasonableness of the employer’s response and must not substitute its own assessment of risk.

An assistant groundsman at a school pleaded guilty to indecent assault against his daughter and admitted two further offences involving his other daughters. The county council dismissed him because his work gave him access to children. Its attempt to find him work in another department was unsuccessful.

An industrial tribunal, by a majority, found the dismissal unfair because the council had insufficiently investigated the risk and the possibility of alternative employment. The Employment Appeal Tribunal allowed the council’s appeal and ordered a rehearing. The employee appealed against that order.

The central issues were whether the council could reasonably accept the employee’s admitted guilt, whether the tribunal had impermissibly substituted its own assessment of risk, and when any investigation of alternative employment had to occur.

1. Appeal dismissed unanimously. Balcombe LJ delivered the leading judgment. Sir John Megaw and the Master of the Rolls agreed. The Employment Appeal Tribunal was correct to set aside the industrial tribunal’s findings and remit the case for rehearing, preferably before a differently constituted tribunal.

2. When an employee has pleaded guilty, or guilt has been established by a competent court or jury, the employer may reasonably believe that the employee committed the offence. The principles discussed in British Home Stores Ltd v Burchell [1980] ICR 303 n concern cases in which guilt has not been established in that way. The industrial tribunal had not, however, found that the council lacked a reasonable belief in the employee’s guilt.

3. The industrial tribunal impermissibly substituted its assessment of the risk for that of the council. The council had no reasonable option but to conclude that the employee could not remain in work bringing him into contact, even casually, with young girls. The majority’s contrary finding was perverse.

4. Section 57(3) of the Employment Protection (Consolidation) Act 1978 should not receive a narrow or technical construction. In an appropriate case, and where the employer’s size and administrative resources permit, dismissal may be unfair if the employer fails first to consider whether an employee who has become unsuitable for the existing job can be offered another job. A change of work may be achieved by varying the original employment. The dicta in Dobie v Burns International Security [1984] ICR 812 and Henderson v Masson Scott Thriswell Engineering [1974] IRLR 98 supported that conclusion.

5. The investigation of alternative employment need not be completed before notice is given. It is sufficient that a reasonable investigation occurs before the notice takes effect. Section 67(4)(a) confirms that, ordinarily, dismissal rather than notice is the operative act. The industrial tribunal therefore erred by attaching weight to the absence of an investigation before notice was issued. Its refusal to adjourn also made its criticism of the council’s evidence concerning redeployment unfair.

1. Court of Appeal: Dismissed the employee’s appeal and upheld the order remitting the unfair-dismissal claim for rehearing, preferably before a differently constituted industrial tribunal.

2. Employment Appeal Tribunal: Allowed the employer’s appeal from the industrial tribunal’s decision and remitted the claim for rehearing.

3. Industrial tribunal: By a majority, held that the employee had been unfairly dismissed.