Milton Keynes General NHS Trust v Southcote-Want

In misconduct dismissals, an employment tribunal must review whether the employer acted reasonably. It must not substitute its own assessment of the evidence or require proof of the employee’s guilt. The employer and tribunal should assess the evidence cumulatively and in context, since individually innocent matters may together support an inference of improper conduct. A procedural defect requires consideration of whether it denied the employee a fair opportunity to answer the case. Under Employment Rights Act 1996, s.98A(2), the tribunal must also decide whether the employer would probably have dismissed following a fair procedure. A failure to perform that assessment makes the decision unsafe.

The respondent, an NHS trust, dismissed its Director of Nursing for gross misconduct after concluding that she had manipulated the appointment of a friend to a risk-management post and had improperly supported payments made for him. The Employment Tribunal found the dismissal unfair, criticising the investigation, the disciplinary officer’s involvement, the appeal process and the treatment of a disputed letter.

The trust appealed, contending that the tribunal had substituted its own factual assessment for that of the dismissing officer, examined each allegation in isolation and inadequately addressed s.98A(2) of the Employment Rights Act 1996. The central issues were whether the tribunal had applied the correct range-of-reasonable-responses test and whether the decision should be set aside.

1. Appeal allowed and decision set aside. The Employment Tribunal had correctly directed itself on the law, including the range of reasonable responses, but had failed to apply that law properly.
2. The tribunal impermissibly substituted its own view of the facts for that of the employer. Its task was to ask whether the dismissing officer genuinely believed in the alleged misconduct, had reasonable grounds for that belief after a reasonable investigation, and acted reasonably in treating it as sufficient for dismissal. The tribunal had instead reassessed individual allegations and evidence.
3. Allegations of favouritism and manipulation required assessment of the evidence as a whole and in context. Payments made for the employee, recruitment decisions, scoring, advertising and the disputed letter could be considered cumulatively. Matters capable of innocent explanations could acquire a different complexion when viewed together.
4. The investigation had to consider exculpatory evidence as well as evidence supporting the allegations, but the tribunal wrongly isolated the absence of an electronic search and failed to assess the investigations overall. It also wrongly concluded that there was no evidence capable of supporting the finding of gross misconduct.
5. The tribunal failed to apply Westminster County Council v Cabaj: where the employer breached its disciplinary procedure by appointing the claimant’s line manager as dismissing officer, it had to ask whether that breach denied the claimant the opportunity to show that the reason relied upon was insufficient. The appeal panel also materially relied on an alleged forgery without giving the claimant a proper opportunity to address that allegation.
6. Under s.98A(2) of the Employment Rights Act 1996, the employer bore the burden of showing that it would have dismissed even after following a fair procedure. The tribunal had to grapple with the evidence and make the appropriate assessment; it could reject the exercise as too speculative only where reliable reconstruction was impossible.
7. The case was remitted for rehearing before a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: allowed the trust’s appeal against the Employment Tribunal’s finding of unfair dismissal and directed a rehearing before a differently constituted tribunal.
• Employment Tribunal: found the dismissal unfair after a hearing lasting approximately five days; its decision was set aside by the Employment Appeal Tribunal.