London Borough of Hackney v Benn

Under section 57 of the Employment Protection (Consolidation) Act 1978, the employer must establish the facts or beliefs causing dismissal and show that they fall within a statutory or other substantial reason. The employer’s legal label is not conclusive. However, where an established disciplinary procedure has been followed, a tribunal must exercise particular caution before reclassifying the employer’s reason. Fairness is assessed by asking whether the employer acted reasonably in treating that reason as sufficient. The tribunal must not substitute its own preferred response. A dismissal is fair if it falls within the range of reasonable responses open to a reasonable employer. On the accepted facts, treating serious non-performance as gross misconduct and dismissing without a warning fell within that range.

An assistant director of education was dismissed after disciplinary proceedings for gross incompetence and mismanagement. The Industrial Tribunal rejected claims of racial and sex discrimination but upheld the claim of unfair dismissal, treating the reason as capability and finding that a warning and opportunity to improve were required.

The Employment Appeal Tribunal allowed the council’s appeal, holding that the tribunal had substituted its own assessment for the range of reasonable responses. The employee appealed to the Court of Appeal. The central issue was whether the tribunal was entitled to reclassify the accepted reason and require a warning, or whether it should have assessed the council’s response to the established case of gross misconduct under section 57(3).

Disposition and governing approach

The Court of Appeal unanimously dismissed the appeal. Lord Justice Neill delivered the leading judgment. Lord Justice Ward agreed and gave additional reasons. Lord Justice Potter agreed with both judgments.

1. Reason for dismissal. The reason for dismissal is the set of facts known to the employer, or beliefs held by it, which caused the dismissal. An incorrect legal label is not conclusive: Abernethy v Mott, Hay & Anderson [1974] ICR 323. A tribunal may identify the true reason from the facts made known to the employee.
2. Section 57(3). Once the employer has established the reason and shown that it falls within subsection (2) of the Employment Protection (Consolidation) Act 1978, the question is whether the employer acted reasonably in treating that reason as sufficient for dismissal. The tribunal must assess the employer’s conduct and must not substitute its own view. It must determine whether the dismissal fell within the range of reasonable responses: Iceland Frozen Foods v Jones [1983] ICR 17.
3. Reclassification. An employer’s label may be disregarded in an appropriate case. But where an established disciplinary procedure has been followed in classifying and investigating the matters, the tribunal must be very careful before reclassifying the facts. Reclassification may obscure the question whether a reasonable employer could reasonably have responded as the employer did.
4. Application. The Industrial Tribunal accepted the evidence of serious failures, non-performance and resulting chaos, and accepted that the allegations were sufficiently serious to justify gross misconduct. The disciplinary committee upheld the charge and rejected alternatives to dismissal. The tribunal was entitled to identify the reason as capability, but it was not entitled to require the council to approach dismissal on that basis and thereby substitute its own preferred response. On the accepted facts, dismissal without a warning fell within the range of reasonable responses and was fair.

The appeal was dismissed with costs. Legal aid taxation of the appellant’s costs was ordered, and leave to appeal was refused.

1. Court of Appeal (Civil Division) — In [1996] EWCA Civ 561, the employee’s appeal from the Employment Appeal Tribunal was dismissed with costs.
2. Employment Appeal Tribunal — The council’s appeal was allowed on 29 July 1994. The tribunal had erred in law by substituting its own assessment for the range of reasonable responses of a reasonable employer.
3. Industrial Tribunal — The discrimination claims were unanimously rejected, but the unfair-dismissal claim was upheld in a decision sent to the parties on 6 May 1993.