London Borough of Brent v Fuller

In a misconduct dismissal, an Employment Tribunal must decide whether dismissal fell within the range of reasonable responses open to the employer. It must not substitute its own view of the seriousness of the conduct or the sanction. In a specialist school, management may assess the risks and appropriateness of intervening in the restraint of a distressed child, including comments made during that intervention. An earlier incident need not have resulted in a disciplinary warning to be relevant. It may show that the employee had been instructed not to intervene and may form part of the background to a later incident. The dismissal was therefore not unfair.

The London Borough of Brent appealed against an Employment Tribunal decision finding that Mrs Fuller had been substantively unfairly dismissed for misconduct. The misconduct concerned her intervention during the physical restraint of a child at a specialist school, comments made during that incident, and related alleged failures to comply with management directions. The Tribunal had treated an earlier, similar incident as insufficiently formal to support the later dismissal and considered that no reasonable employer would have dismissed for the October incident alone.

The appeal concerned substantive fairness only. The procedural criticisms did not themselves render the dismissal unfair. The central issues were whether the Tribunal had substituted its own judgment for that of management and whether the earlier incident was relevant despite not having produced a formal disciplinary sanction.

1. Appeal allowed. The Employment Tribunal had erred in law in finding the dismissal substantively unfair. Its decision was set aside and the claim for unfair dismissal was dismissed.
2. Under section 98(4) of the Employment Rights Act 1996, the question was whether this employer acted reasonably in treating misconduct as a sufficient reason for dismissal. The Burchell principles and the range-of-reasonable-responses test in Iceland Frozen Foods Ltd v Jones applied to the relevant stages of the decision.
3. The Tribunal was entitled to assess whether a reasonable employer could have dismissed. It was not entitled to decide what it would have done itself. Its repeated criticisms of the employer, and its conclusion that the October incident did not merit dismissal, showed that it had substituted its own assessment for that of the school’s management.
4. The school was a specialist establishment dealing with children with social and emotional difficulties. The Head Teacher and governors were entitled to judge that an untrained administrative employee’s intervention during professional restraint, together with inappropriate comments of a sexual nature and apparent defiance of an instruction to leave, was serious misconduct. Dismissal for the October incident alone was within the band of reasonable responses.
5. The May incident was not a formal warning or final warning. It remained relevant background because the employee had been told not to interfere when a child was being restrained. The employer was entitled to rely on that prior instruction when assessing the seriousness of the October incident, even though no disciplinary proceedings or sanction had followed.
6. The occupational-health issue did not form part of the operative reason for dismissal as determined on appeal. The material reason was the October misconduct, viewed against the May incident. The Tribunal was wrong to criticise the employer for taking that background into account.

• Employment Appeal Tribunal: allowed the employer’s appeal from the Employment Tribunal’s finding of substantive unfair dismissal. The judgment was set aside and the claim was dismissed.
• Employment Tribunal: found the dismissal substantively unfair, while rejecting procedural unfairness as independently determinative. The decision was reversed on appeal.