London Waste Ltd v Scrivens

In an unfair dismissal case, the reasonable range of responses test applies to the disciplinary process as a whole, including the investigation and the decision to dismiss. The tribunal must assess what the employer did as well as what it failed to do, and must not focus exclusively on a missed investigative recommendation. The seriousness of the allegations and their potential effect on the employee remain relevant. A procedural defect does not by itself make a dismissal unreasonable if the employer can show under section 98A(2) of the Employment Rights Act that it would have dismissed the employee had a proper procedure been followed. Adequate findings are required on the material facts before that issue, contribution and remedy can properly be determined.

The employee, a transport yard supervisor, was dismissed for gross misconduct after an investigation into the removal of bicycles from a recycling yard and allegations concerning his conduct towards colleagues and a manager. The Employment Tribunal found the investigation unfair because recommended questions had not been put to witnesses. It found the dismissal substantively unfair, adjourned contribution and remedy, and made no clear findings about the employee’s involvement with the bicycles or the significance of his concealment of another employee’s conduct.

The employer appealed, arguing that the Tribunal had failed to apply section 98A(2) and had not assessed the investigation as a whole. The central issues were whether the Tribunal had applied the reasonable range of responses test correctly and whether its findings enabled the effect of the procedural defect to be determined.

1. Appeal allowed; case remitted. The Employment Tribunal’s decision could not stand because it had not correctly applied the reasonable range of responses test to the investigation as a whole.

2. The test applies across the disciplinary process, including the investigation and the decision to dismiss. The Tribunal should have considered the investigation in the round, examining both what was done and what was omitted, including the questions actually put to the witnesses. It was wrong to concentrate exclusively on the failure to implement the recommendations in the Cole document.

3. The Tribunal had correctly directed itself by reference to British Home Stores v Burchell [1980] ICR 303, Post Office v Foley [2000] IRLR 827, Sainsbury’s Supermarkets Limited v Hitt [2002] EWCA Civ 1588 and Neary v Dean of Westminster [1999] IRLR 288. Those authorities required attention to the band of reasonable responses, the non-substitution principle, the reasonableness of the procedure, and the gravity of the alleged misconduct.

4. The Tribunal had made insufficient findings on whether the employee had misappropriated the red bicycle, his involvement in the bicycles later associated with Mr Adams, the significance of his knowledge and concealment of Mr Adams’s conduct, and the gravity of removing bicycles from the recycling yard.

5. The Tribunal should also have considered section 98A(2) of the Employment Rights Act. A procedural failure does not of itself make the employer’s action unreasonable if the employer shows that it would have dismissed following a proper procedure. The Tribunal’s findings did not enable the EAT to determine the issue.

6. The matter was remitted for rehearing before a differently constituted Employment Tribunal. The EAT made no determination on contribution or the prospects of dismissal, but observed that both issues were closely connected with the merits and might properly have been determined together.

• Employment Appeal Tribunal: Allowed the employer’s appeal from the Employment Tribunal’s finding of unfair dismissal and remitted the question of unfair dismissal to a differently constituted Employment Tribunal.
• Employment Tribunal at Watford: Found that the employee had been unfairly dismissed because there had been no fair investigation. It adjourned contribution and remedy.