Howe v London Borough of Hammersmith and Fulham

In a misconduct dismissal, the Employment Tribunal must assess whether the employer had a genuine belief in the misconduct, reasonable grounds for that belief following a reasonable investigation, and acted within the range of reasonable responses under Employment Rights Act 1996, section 98(4).

The appellate tribunal must avoid substituting its own view of the facts or sanction. Where allegations of fraud are serious, the investigation must meet a correspondingly high standard, but it need not establish guilt to the criminal standard. A perversity challenge faces a very high threshold.

The Claimant appealed against an Employment Tribunal decision dismissing her complaint of unfair dismissal. She had held employment with both Hammersmith and Fulham and Brent despite an earlier instruction to relinquish one position. She was dismissed after allegations that she had maintained dual employment and claimed sick pay from Hammersmith and Fulham while working for Brent.

The Employment Tribunal found that the investigation was thorough, that the employer reasonably believed the allegations, and that dismissal was within the range of reasonable responses. The appeal concerned substitution of the Tribunal’s view, adequacy of the investigation, and alleged perversity.

The appeal was dismissed. The Employment Tribunal’s decision disclosed no error of law and there was no reasonable prospect of success.

1. Statutory approach. Sections 98(1) and 98(2) of the Employment Rights Act 1996 require the employer to establish a potentially fair reason for dismissal. Section 98(4) requires the Tribunal to determine whether dismissal was reasonable in the circumstances.
2. No substitution. The Tribunal did not substitute its own view for that of management. Its task was to assess whether the investigation was reasonable in the circumstances and whether dismissal, in light of that investigation, fell within the range of reasonable responses. The approach in Sainsbury’s Supermarket Ltd v Hitt and London Ambulance Service v Small was correctly applied.
3. Investigation of serious allegations. An allegation of fraud against a professional carer and teacher was serious, so the investigation had to meet a high standard. The Tribunal was entitled to find that the investigation was sufficient. The employer was not required to prove the misconduct to the criminal standard.
4. Reasonableness of dismissal. The findings that the Claimant knowingly disobeyed the instruction to relinquish one job and had claimed sick pay while working elsewhere were reasonably open to the employer and Tribunal. In light of the earlier conduct, dismissal rather than a warning was within the range of reasonable responses.
5. Perversity. The Tribunal’s reasons were clear and uncontradicted. The high threshold for perversity or Wednesbury unreasonableness identified in Yeboah v Crofton was not met.

• Employment Tribunal, Watford: The claim for unfair dismissal was dismissed. Reasons were registered on 4 March 2010.
• Employment Appeal Tribunal: The appeal was dismissed under rule 3(10); the Tribunal had correctly applied the statutory test and the range of reasonable responses approach.