Nunn v Royal Mail Group Ltd

In an unfair-dismissal claim involving competing reasons, the employer bears the burden of showing the reason or principal reason for dismissal. The tribunal must decide that question as one of fact, using direct evidence and reasonable inferences from the primary facts. It must consider the employee’s alternative case and test the employer’s evidence, but the burden does not shift as it may in discrimination claims.

Where dismissal follows an employee’s refusal to accept an earlier disciplinary sanction, the tribunal may consider the earlier events when assessing fairness under Employment Rights Act 1996, section 98(4). It need not rehear the earlier disciplinary process in detail unless there is an obvious reason why the sanction was unfair. An appeal on perversity requires an overwhelming case that no reasonable tribunal could have reached the decision.

The appellant had been employed by Royal Mail Group Ltd as a late-shift manager. Following findings that he had deliberately misled a management investigation, he received suspended dismissal and downgrading. He refused to accept the downgrading and was later dismissed.

An Employment Tribunal found that the reason for dismissal was his refusal to accept the sanction, rather than his assertion of statutory rights or a protected disclosure under sections 103A and 104 of the Employment Rights Act 1996. It also found the dismissal fair, taking account of the earlier disciplinary history. The appellant challenged the tribunal’s approach to competing reasons, the extent of its review of the earlier sanction, and several factual findings.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the dismissal resulted from the appellant’s refusal to accept the downgrading sanction. The question of the reason or principal reason was one of fact. The tribunal had to assess the evidence as a whole, consider the employee’s contention that the dismissal had another cause, and test the employer’s witnesses on matters pointing to that cause. It was not required to adopt the burden-shifting approach used in discrimination cases. The approach in Kuzel v Roche Products Limited [2008] ICR 799 was accepted.

2. The tribunal was entitled to rely substantially on Mr Willis’s evidence and credibility, including his evidence that he lacked knowledge of the Employment Tribunal proceedings. The timing of the later disciplinary process did not require a different conclusion.

3. In assessing fairness under section 98(4) of the Employment Rights Act 1996, the tribunal could consider the previous disciplinary history because it formed part of the circumstances leading to the dismissal. However, it was not required to examine the earlier allegations and procedure as though the later dismissal were itself a misconduct dismissal. A limited review was sufficient unless there was a glaringly obvious reason why the earlier demotion was unfair. The tribunal had applied the range of reasonable responses test and had made no error of law.

4. The challenges to the tribunal’s treatment of the earlier findings, medical evidence and internal appeals did not approach the threshold for perversity. Applying Yeboah v Crofton [2002] IRLR 634, such an appeal requires an overwhelming case that no reasonable tribunal, properly appreciating the evidence and law, could have reached the decision. The appeal was dismissed.

• Employment Appeal Tribunal: Appeal from the Reading Employment Tribunal dismissed. The tribunal had dismissed claims for unfair dismissal and automatically unfair dismissal under sections 103A and 104 of the Employment Rights Act 1996.
• Reading Employment Tribunal: Claims dismissed. The tribunal found that the principal reason for dismissal was refusal to accept the downgrading sanction and that the dismissal was fair.