Argos Ltd v Reis

In a misconduct dismissal, the tribunal must assess whether the employer genuinely believed in the employee’s guilt, had reasonable grounds for that belief, and conducted as much investigation as was reasonable at the time. It must then decide whether dismissal fell within the band of reasonable responses under Employment Rights Act 1996, section 98(4).

The tribunal reviews the material available to the employer and must not substitute its own view. However, it may draw reasonable inferences from that material, including inferences about motive and the plausibility of the alleged misconduct. Where an investigation is materially one-sided or leaves insufficient grounds for the belief in guilt, dismissal may be unfair.

The respondent appealed against an Employment Tribunal decision that the claimant had been unfairly dismissed for allegedly sending an abusive email to an area manager. The claimant denied sending it. Several employees had access to the relevant computer, but the employer’s investigation focused principally on the claimant and accepted other employees’ accounts without equivalent scrutiny.

The Employment Tribunal found that the employer genuinely believed the claimant was guilty, but lacked sufficient reasonable grounds and had not carried out a reasonable investigation. The central issue before the Employment Appeal Tribunal was whether the tribunal had impermissibly substituted its own view for that of the employer.

1. Appeal dismissed. The Employment Tribunal’s conclusion that the dismissal was unfair was open to it and disclosed no error of law.
2. In accordance with section 98 of the Employment Rights Act 1996, including section 98(4), the tribunal had to assess the employer’s reasonableness in treating misconduct as sufficient reason for dismissal, having regard to equity and the substantial merits of the case.
3. The tribunal correctly applied the three-stage approach in British Home Stores Ltd v Burchell: genuine belief in misconduct, reasonable grounds for that belief, and as much investigation as was reasonable at the time. It then correctly considered whether dismissal fell within the band of reasonable responses.
4. The tribunal was entitled to review the material available to the employer against the standard of a reasonable employer conducting a reasonable investigation. This was not substitution of its own decision. It could draw its own reasonable inferences from the material, including that the claimant had no apparent motive and that it was unlikely that a first use of the relevant software would have been to send an abusive message.
5. The tribunal was also entitled to find that the investigation treated the claimant’s account differently from the accounts of other suspects. That finding supported the conclusion that the employer lacked sufficient grounds for believing that the claimant should be dismissed. In a serious misconduct case, the required investigation must meet the overall standard of reasonableness, with the seriousness of the allegation or consequence capable of requiring a high standard of investigation.
6. Any misdescription of some findings as concerning investigation, rather than reasonable belief or the range of reasonable responses, did not affect the result. The finding concerning the claimant’s disciplinary record was not material to the tribunal’s conclusion.

• Employment Appeal Tribunal: dismissed the employer’s appeal against the Employment Tribunal’s finding of unfair dismissal.
• Employment Tribunal: found that the claimant had been unfairly dismissed and awarded compensation of £4,117.80.