Royal Bank of Scotland v Chaer

An Employment Tribunal may find a conduct dismissal unfair where the employer’s investigation was not reasonable. An appellate tribunal should not interfere with findings based on the evidence heard and documents examined unless the conclusion is legally perverse. The Tribunal must not substitute its own view of the employee’s credibility or of the reasonable employer’s decision. However, its assessment of credibility may inform whether the employer’s investigation was adequate and may be relevant to contributory conduct.

The Respondent appealed against the Watford Employment Tribunal’s liability decision upholding the Claimant’s complaint of unfair dismissal. The Tribunal found that the employer had failed to conduct a reasonable investigation before dismissing the Claimant for alleged gross misconduct.

The appeal alleged legal perversity and impermissible substitution of the Tribunal’s view for that of the employer. Separate appeals concerning remedy were not before the Employment Appeal Tribunal.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the dismissal was unfair because the employer’s investigation was inadequate.
2. The Tribunal found that the investigation conducted by the inexperienced investigator was flawed, that the dismissing manager relied upon it, and that the appeal manager did not sufficiently investigate the role of the Claimant’s line manager. Those were findings reached after hearing the witnesses and examining the documents. The Employment Appeal Tribunal could not properly go behind them.
3. The perversity challenge failed. The appellate hurdle was high, applying the approach in Yeboah v Crofton [2002] IRLR 634. The Respondent’s further investigation on appeal, including an interview with the line manager, did not make the Tribunal’s conclusion legally perverse.
4. The Tribunal had not substituted its own view for that of the employer. Although it found the Claimant’s account credible, that finding followed its reasoning on the adequacy of the investigation. Credibility could inform the assessment of whether the employer’s investigation was reasonable and could also be relevant to contributory conduct.
5. The former distinction between an appeal by way of review and one by way of rehearing was no longer recognised, following Taylor v OCS Group Ltd [2006] IRLR 613 (CA).

The liability appeal was dismissed. The parties’ remedy appeals were to proceed to the paper sift.

• Watford Employment Tribunal: upheld the complaint of unfair dismissal, finding that the employer had not carried out a reasonable investigation.
• Employment Appeal Tribunal: dismissed the employer’s liability appeal. Remedy appeals were left to proceed separately.