Dogan v. London Borough of Greenwich

In an unfair dismissal claim, the employer’s reason and investigation must be assessed by reference to the standards in Burchell and the band of reasonable responses. The tribunal need not determine an underlying housing-law issue where the dismissal was based on employment misconduct, namely failure to disclose relevant information and breach of disciplinary rules. Under the statutory disciplinary procedure, an appeal may be completed even if the employee refuses to attend, provided the prescribed steps have been taken, the employee was invited and given an opportunity to explain the case, and the employer reaches and communicates a final decision. Unreasonable delay does not automatically prevent completion of the procedure.

The claimant, a council employee and secure tenant, was summarily dismissed for gross misconduct after failing to disclose that he owned another property when signing a council tenancy agreement. He claimed unfair dismissal, arguing that the investigation should have addressed housing law and that the statutory appeal procedure was incomplete because he declined to attend an appeal hearing arranged after an unreasonable delay.

An Employment Tribunal dismissed the claim. The claimant appealed to the Employment Appeal Tribunal on three grounds concerning the misconduct findings, the investigation, and completion of the statutory procedure.

1. Appeal dismissed. The dismissal was for failure to disclose relevant and essential information, contrary to the employer’s disciplinary rules, and not for breach of the claimant’s tenancy agreement. The Employment Tribunal was entitled to uphold the employer’s conclusion that the conduct amounted to gross misconduct.
2. The Tribunal correctly applied British Home Stores Ltd v Burchell and Sainsburys Supermarkets Ltd v Hitt. The employer had a genuine belief, reasonable grounds for that belief, and had conducted an investigation reasonable in the circumstances. The claimant’s signed declaration and relevant professional experience materially reduced the need for further investigation. An admission or substantially established fact may justify an investigation of lesser intensity.
3. Applying London Ambulance Service NHS Trust v Small, the Tribunal was not required to substitute its own view or determine technical housing-law issues which were not the employer’s principal reason for dismissal. The housing issue was therefore properly left undecided for the purpose of the unfair dismissal claim.
4. The Tribunal was entitled not to follow Scottish Daily Record & Sunday Mail v Laird. That case concerned an investigation into whether a potential conflict of interest was real. The present investigation had a narrower remit and was reasonable on the material available.
5. As to the Employment Act 2002 procedure, the appeal stage was completed. The claimant had notified the employer of his wish to appeal, had been invited to meetings, had the opportunity to present his case and be accompanied, was required to take reasonable steps to attend, and was notified of the final decision. A meeting or hearing can proceed without the employee where the statutory requirements are otherwise met. The earlier unreasonable delay did not prevent completion, and no automatic unfair dismissal arose.
6. The Tribunal made an unnecessary alternative observation that, if housing law had required determination, section 92(5) of the Housing Act 1986 indicated a breach of the tenancy. That observation was not necessary to the dismissal of the appeal.

• Employment Tribunal: the unfair dismissal claim was dismissed; reasons were registered on 22 May 2009.
• Employment Appeal Tribunal: appeal dismissed.