University of Warwick v Gray

In a misconduct dismissal, the tribunal must apply the objective band of reasonable responses test and must not substitute its own assessment of the evidence or the appropriate sanction for that of the employer. The question is whether the dismissal fell within the range open to a reasonable employer on the material available to management.

Differences between employees may justify different sanctions, including an extant warning and materially different conduct. The reasonableness of the investigation is assessed by the same objective standard. An appeal may rectify earlier procedural defects where the employee knows the gist of the case. A tribunal must also address all conduct contributing to dismissal when assessing contribution.

The Respondent appealed against an Employment Tribunal decision upholding the Claimant’s complaint of unfair dismissal. The Claimant, a swimming-pool assistant, had entered the sports centre without authority after a student event. He had an extant warning for unrelated misconduct and had been aggressive and abusive towards a security officer.

The Employment Tribunal found defects in the original investigation, concluded that a fair process would have resulted in a final written warning, and ordered reinstatement. It later made compensation awards when reinstatement was not complied with. The appeals concerned liability, remedy and failure to comply. The central questions were whether the dismissal fell within the band of reasonable responses, whether the investigation was reasonable, and whether the Tribunal had impermissibly substituted its own judgment.

1. Appeal allowed. The Employment Tribunal’s liability judgment was set aside, and judgment was substituted that the dismissal was not unfair. The remedy judgments were also set aside.
2. Section 98(4) of the Employment Rights Act 1996 required the Tribunal to assess the reasonableness of the employer’s conduct in all the circumstances. The Tribunal had to ask whether the dismissal fell within the band of reasonable responses, without substituting its own view of the appropriate decision. That approach applied to the investigation as well as to the dismissal decision.
3. Following London Ambulance Service NHS Trust v Small [2009] IRLR 563, the relevant question was what a reasonable dismissing manager could make of the material before him, rather than what appeared credible or persuasive to the Employment Tribunal on a rehearing of the evidence. The Tribunal’s adverse view of Mr Hopkins did not resolve that question.
4. The Claimant’s case was not on all fours with the three other employees. He had an extant warning which expressly placed him at risk of dismissal for further misconduct, and he had been aggressive and abusive towards a security officer. Those were relevant distinctions which Mr Sloane was entitled to take into account. The dismissal therefore fell within the band of reasonable responses.
5. The alleged investigative defects did not justify the Tribunal’s conclusion. The Wakefield evidence, although wavering, consistently supported the material finding of aggression. The gist of the evidence was disclosed through Mr Dunn’s detailed report. The appeal process had therefore provided a fair basis for the decision.
6. The Tribunal also erred in its assessment of contributory conduct by treating unauthorised entry as the sole contribution. The warning and aggressive conduct were also matters which contributed to the dismissal and had to be addressed.

• Employment Appeal Tribunal: allowed the Respondent’s appeals and substituted a judgment that the dismissal was not unfair.
• Employment Tribunal: upheld the unfair-dismissal claim, ordered reinstatement, and later made compensation awards following non-compliance with the reinstatement order.