Nkengfack v London Borough Of Southwark

Under section 98(4) of the Employment Rights Act 1996, an employment tribunal must decide whether the employer acted reasonably in treating the reason for dismissal as sufficient. Its task is to assess the dismissal actually imposed, rather than investigate every sanction that might have been available. A dismissal is fair if it falls within the band of reasonable responses open to a reasonable employer. The tribunal must reach conclusions on essential issues, but it need not address every evidential circumstance or submission in detail. Where gross misconduct involving dishonesty has been established, dismissal may plainly fall within that band, and an alternative sanction may not arise realistically.

The appellant, a school teacher, was dismissed for gross misconduct after disciplinary panels accepted evidence that she had worked in her hairdressing salon while claiming to be absent from school through illness. Her complaints of unfair dismissal, race discrimination and sex discrimination were dismissed by an Employment Tribunal.

The Employment Appeal Tribunal dismissed her appeal. Permission to appeal to the Court of Appeal was limited to whether the Employment Tribunal had adequately considered the absence of an alternative lesser sanction and the issue of mitigation. The appeal also proceeded on an initially mistaken factual assumption that the appellant had not been invited to make mitigation submissions.

1. Appeal dismissed. The disciplinary and appeal panels had given the appellant opportunities to make submissions in mitigation. The Employment Tribunal and the Employment Appeal Tribunal had proceeded on an incorrect factual basis concerning mitigation, but that error did not establish an appealable flaw in the Employment Tribunal’s decision.
2. Under section 98(4) of the Employment Rights Act 1996, the question was whether the respondent acted reasonably or unreasonably in treating gross misconduct as a sufficient reason for dismissal. The Tribunal was required to assess the dismissal imposed, not an alternative course which the employer had not taken.
3. The governing standard was the band of reasonable responses stated in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and reaffirmed in Foley v The Post Office [2001] 1 All ER 550. If the dismissal fell within that band, the Tribunal’s enquiry ended.
4. The Tribunal had found that the investigation was proper and that the disciplinary panels were entitled to accept the evidence of dishonesty. In those circumstances, summary dismissal plainly fell within the band of reasonable responses. The appellant’s prior telephone call saying that she would return to work did not reduce the seriousness of the dishonesty.
5. The Court accepted the principle, referred to in Wheeler v Durham County Council, that a tribunal must reach conclusions on essential issues, while not being required to explore every matter in the evidence. The Tribunal had adequately addressed gross misconduct and unfair dismissal.

Lord Justice Judge and Lord Justice May agreed with Lord Justice Peter Gibson. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): dismissed the appeal with costs.
• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s decision.
• Employment Tribunal: dismissed complaints of unfair dismissal, race discrimination and sex discrimination.