Sarkar v West London Mental Health NHS Trust

Under s 98(4) of the Employment Rights Act 1996, an employment tribunal must objectively decide whether dismissal fell within the range of reasonable responses open to the employer. It must not substitute its own view of the appropriate sanction. The tribunal may consider the employer’s earlier handling of the same alleged misconduct. An agreed procedure indicating that the conduct was relatively minor, and capable only of a written warning, may be a material factor. That procedure does not automatically prevent later formal disciplinary action, but inconsistency between the earlier approach and summary dismissal may render dismissal unfair. The tribunal may also consider additional incidents and a late change of approach that brought the agreed procedure to an end.

Dr Sameer Sarkar, a consultant psychiatrist employed by the respondent NHS Trust, was summarily dismissed for gross misconduct after allegations of bullying, harassment and other incidents. The Trust had initially agreed with him to use its Fair Blame Policy, under which dismissal was unavailable, but the process ended after a proposal to report the matter to the General Medical Council. A disciplinary panel later found gross misconduct and dismissed him.

The Employment Tribunal found the dismissal unfair and reduced compensation for contributory fault. On the Trust’s appeal, the Employment Appeal Tribunal, in UKEAT/0479/08/DM, substituted a finding that the dismissal was fair. The issue before the Court of Appeal was whether the tribunal had misapplied s 98(4), substituted its own judgment, or failed to assess the additional incidents in the context of the whole conduct.

Disposition. Lord Justice Mummery, with whom Lord Justices Richards and Rimer agreed, allowed the appeal, restored the Employment Tribunal’s judgment and directed that the matter proceed to a remedies hearing.

1. Under s 98(4) of the Employment Rights Act 1996, the tribunal must objectively determine whether dismissal was within the range of reasonable responses open to this employer. It must not decide what it would have done itself. The principles identified in Iceland Frozen Foods Limited v Jones [1983] I.C.R. 17 and Foley v Post Office [2000] ICR 1283 governed that assessment.
2. The circumstances relevant to fairness and reasonableness are wide. The agreed use of the Fair Blame Policy was therefore relevant, and the weight to be given to it was for the Employment Tribunal. The policy did not legally fetter the Trust’s disciplinary options or prevent it from relying on the earlier incidents, but it was evidence of the Trust’s initial view that the alleged misconduct was relatively minor.
3. The tribunal was entitled to conclude that it was inconsistent for the Trust, after using a procedure under which only a written warning could result, to charge the employee with gross misconduct and dismiss him summarily on the basis of substantially the same matters.
4. The tribunal did not unlawfully substitute its judgment for that of the Trust by treating the additional incidents as relatively minor. It was entitled to rely on evidence from the chairman of the disciplinary panel describing those incidents as relatively minor or less important, and to consider them with the earlier conduct as a continuing course.
5. The tribunal was also entitled to take account of the late introduction of reporting to the General Medical Council as a new condition which brought the Fair Blame Policy process to an end. That finding was not procedurally unfair because the issue had been pleaded and the Trust had an opportunity to call evidence on it.
6. As the Employment Tribunal had made no error of law, the question whether the Employment Appeal Tribunal should have remitted the case did not require determination.

• Court of Appeal (Civil Division): allowed the appeal and restored the Employment Tribunal’s finding that the dismissal was unfair.
• Employment Appeal Tribunal: allowed the Trust’s appeal in UKEAT/0479/08/DM, substituted a finding that Dr Sarkar was not unfairly dismissed and dismissed his claim.
• Employment Tribunal: found the dismissal unfair and reduced compensation by 25 per cent for contributory fault.