National Amusements (UK) Ltd (t/a Showcase Cinemas) v Thomson

When reviewing a dismissal for misconduct, an Employment Tribunal must assess whether the employer’s investigation, disciplinary process and sanction fell within the range of reasonable responses. It must not substitute its own assessment of the seriousness of the conduct, the employee’s motive or the confidentiality of the information for the employer’s reasonable assessment.

The absence of a specific written policy does not necessarily make dismissal unreasonable where the conduct was obviously unauthorised and the employee understood that misuse of the employer’s CCTV system was serious. Relevant previous warnings and dishonesty must also be considered. A dismissal may therefore be fair even though the Tribunal would have imposed a lesser sanction.

Mr Thomson, a Supervisor and Projectionist employed by National Amusements (UK) Ltd, downloaded CCTV images of a colleague without authorisation. He initially admitted doing so during a grievance hearing, later denied it, and subsequently said that the admission itself had been false.

The employer summarily dismissed him for failing to observe confidentiality procedures concerning the company’s CCTV equipment. The Employment Tribunal upheld his unfair-dismissal claim, finding that there was no clear procedure, no breach of confidentiality, and that dismissal fell outside the range of reasonable responses. The employer appealed on the ground that the Tribunal had substituted its own view for that of the employer.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and a decision was substituted that the dismissal was not unfair.
2. The Tribunal had correctly directed itself on the range of reasonable responses test, including its application throughout the investigation, disciplinary process and decision to dismiss. Its error was in applying that test through a substitution mindset.
3. The Tribunal assessed the conduct for itself. It treated the downloading as having an innocent purpose, compared the CCTV image with a diary note or mobile-phone photograph, and concluded that the information was not confidential or private. Those were matters for the employer’s reasonable assessment, not matters to be determined by substituting the Tribunal’s view.
4. The Tribunal should also have considered that the downloading was unauthorised and furtive, that it interrupted CCTV surveillance, that the Claimant repeatedly lied about it, and that he was subject to an earlier final written warning relating to misuse of CCTV. The absence of a specific CCTV policy did not prevent the employer from reasonably treating the conduct as serious misconduct.
5. The employer’s failure to investigate the precise duration of the interruption did not make the dismissal unfair. On the material findings, the disciplinary and appeal decisions were within the range of reasonable responses. There was no basis for remission to the Employment Tribunal.

• Employment Tribunal, Liverpool: upheld the unfair-dismissal claim and awarded £1,304.35 after deductions.
• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a finding that the dismissal was not unfair.