West Midlands Fire and Rescue Authority, R (on the application of) v First Secretary of State in the Office of the Deputy Prime Minister & Ors

Judicial review of a disciplinary appeal decision is confined to public-law grounds where no statutory appeal lies. A decision-maker may reject a disciplinary tribunal’s conclusions where those conclusions are irrational, inadequately reasoned or unsupported by the evidence, provided the decision-maker explains the departure. Summary dismissal for gross misconduct requires proof of conduct sufficiently serious to justify termination. Unauthorised conduct is not necessarily gross misconduct: its character depends on its purpose, effect and evidential foundation. Serious allegations remain subject to the civil standard of proof, applied flexibly in light of the seriousness of the allegation. A court should not remit a matter for consideration of a minor sanction where the conduct cannot rationally amount to gross misconduct and remittal would be oppressive or disproportionate.

The claimant authority sought judicial review of reasons given by the Secretary of State on 24 February 2006 for allowing an appeal against the interested party’s dismissal or compulsory resignation for gross misconduct.

The disciplinary appeal committee had found, by majority, that the interested party had incited unlawful secondary picketing and had made unauthorised telephone calls concerning the temporary storage of fire equipment. It rejected an allegation of sabotage. The Secretary of State accepted that the calls were unauthorised but concluded that the evidence did not establish an intention to disable fire appliances or conduct justifying termination.

The challenge alleged irrationality and illegality. The court considered whether the Secretary of State was entitled to depart from the committee’s conclusions and whether the matter should be remitted.

1. The application was dismissed. The Secretary of State’s reasons were rational and adequately explained. The claimant was ordered to pay the defendant’s costs, summarily assessed at £16,599.88 plus VAT. Permission to appeal was refused.
2. The statutory disciplinary scheme distinguished the exceptional summary procedure for gross misconduct from the ordinary procedure involving investigation, charges and a full hearing. Gross misconduct required conduct sufficiently serious to justify dismissal, not merely conduct amounting to some form of misconduct.
3. The committee’s finding concerning alleged incitement to unlawful picketing was unsustainable. It relied on witnesses whose evidence concerning picketing was linked to an allegation of sabotage that the committee had rejected. It failed to identify the conduct said to constitute unlawful secondary picketing and treated supporting evidence as if it contradicted the witness’s actual account.
4. The Secretary of State was entitled to accept that the telephone calls were unauthorised while concluding that they did not constitute gross misconduct. The evidence showed that the calls concerned safeguarding equipment. There was no finding of dishonesty, malicious intention or an intention to render appliances unusable. A hypothesis that the committee must have found the interested party dishonest had no evidential foundation.
5. The court applied the flexible civil standard of proof. The seriousness of an allegation is a factor affecting the assessment of probabilities and the strength of evidence required. The court also stressed that a finding of dishonesty should not be made lightly and requires express adjudication.
6. Once the conduct could not rationally be treated as gross misconduct, there was no basis for remitting the matter for consideration of a lesser sanction. Remittal more than five years after the events would in any event have been oppressive.

The claim challenged the Secretary of State’s decision allowing the interested party’s disciplinary appeal. The judgment records that Collins J had declined to permit a challenge to the Secretary of State’s refusal to order an inquiry under Regulation 16(1). The Administrative Court dismissed the judicial review claim.