Cancer Research UK v. Harding

In an unfair dismissal case, the employer bears the burden of showing the potentially fair reason for dismissal. The burden is neutral on whether the employer had reasonable grounds for its belief in misconduct and whether that belief followed a reasonable investigation. An Employment Tribunal must give adequate reasons identifying the alleged procedural or investigative defects and explaining their significance. Where material errors of law and inadequate reasons prevent the appellate tribunal from determining the merits, the proper course is remission for rehearing before a differently constituted tribunal.

The employee, a charity van driver, was dismissed for alleged gross misconduct involving his driving. The Employment Tribunal found the dismissal unfair. The employer appealed, challenging the adequacy of the Tribunal’s reasons and its direction on the British Home Stores Ltd v Burchell approach.

The appeal was no longer opposed. The Employment Appeal Tribunal considered whether the Tribunal had identified the relevant defects in the investigation, explained the reliance placed on a final warning and the employee’s evidence, addressed section 98A(2) of the Employment Rights Act 1996, and correctly allocated the burden of proof.

1. Appeal allowed. The Employment Tribunal’s reasons were inadequate. It did not state whether the employer regarded the driving as misconduct or gross misconduct, or whether and to what extent the final written warning was relied upon in the dismissal.
2. The Tribunal did not clearly identify which aspects of the investigation rendered the dismissal unfair. Its reasoning did not explain the significance of the complaint details, the employer’s alleged lack of clarity about the incident, the treatment of the employee’s statements, or uncertainty about the location and direction of travel.
3. The Tribunal also failed to deal adequately with the argument under section 98A(2) of the Employment Rights Act 1996 that any procedural default would not have altered the outcome.
4. The Tribunal misdirected itself on the British Home Stores Ltd v Burchell test by treating the employer as bearing the burden of proof on all three questions. As explained in Sheffield Health & Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09, the employer bears the burden of showing the potentially fair reason for dismissal. The burden is neutral in relation to reasonable grounds for the belief and reasonable investigation, which fall under section 98(4) of the Employment Rights Act 1996.
5. The errors were sufficient to allow the appeal. The findings were not adequate to enable the EAT to substitute a finding of fair dismissal, and no perversity ground had been raised. The claim was remitted for rehearing before a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal’s finding of unfair dismissal and remitted the claim for rehearing before a differently constituted tribunal.