Brent London Borough Council v. Fuller

The Court of Appeal considered whether the Employment Tribunal correctly applied the objective test in s.98(4) of the Employment Rights Act 1996 when determining whether dismissal for alleged misconduct was fair. The central legal principle is that the tribunal must assess, objectively, whether the dismissal was within the range or band of reasonable responses of a reasonable employer, having regard to the reason shown by the employer and the reasonableness of the employer's investigation. The tribunal found the employer had a genuine belief in serious misconduct but concluded that a reasonable employer would not have dismissed the claimant for the one-off incident and would have imposed a lesser sanction. The EAT set aside that finding on the ground that the tribunal had substituted its own view for the employer's, but the Court of Appeal held that the Employment Tribunal had applied the correct objective test and its finding of unfair dismissal was not perverse.

Background and facts:

• The claimant was a school bursar dismissed for gross misconduct following an incident on 19 October 2007 during which she intervened in the restraint of a pupil and made critical remarks about staff. A previous, separate intervention occurred on 22 May 2007.
• The disciplinary panel dismissed the claimant on 28 February 2008 for gross misconduct and the dismissal was upheld on internal appeal. The claimant brought an unfair dismissal claim to the Employment Tribunal which found in her favour on liability and awarded compensation after a remedies hearing.

Procedural history: The Council appealed to the Employment Appeal Tribunal (EAT), which allowed the Council's appeal, set aside the Employment Tribunal's decision and dismissed the claimant's claim. The claimant appealed to the Court of Appeal.

Nature of the claim and relief sought: The claimant sought a declaration that her dismissal was unfair and compensation.

Issues framed by the court:

• Whether the Employment Tribunal applied the correct objective legal test under s.98(4) of the Employment Rights Act 1996 (including the requirement to determine if the dismissal fell within the range of reasonable responses).
• Whether the Employment Tribunal improperly substituted its own judgment for that of the employer by assessing the facts subjectively or by applying its own view of the prior warning (May incident) rather than the employer's belief.
• Whether the employer's investigation was reasonable in the circumstances.

Court's reasoning:

• The Court examined the ET decision as a whole and concluded the ET had posed the correct question and, on a fair reading in context, applied the objective test required by s.98(4). The ET recognised the employer's genuine belief and considered the reasonableness of the investigation; it then concluded that no reasonable employer would have dismissed for a one-off incident and that the prior incident had been overstated by the employer.
• The Court held that, because the ET applied the objective standard and its conclusion was one that a reasonable tribunal could reach, the finding was not perverse and the EAT was wrong to substitute its view. The EAT should have remitted the matter for rehearing if there were an error of law or perversity; it was not entitled simply to dismiss the claim.

Outcome: The Court of Appeal allowed the claimant's appeal and restored the Employment Tribunal's finding of unfair dismissal. The EAT's decision to dismiss the claim was set aside.

Appeal allowed. The Court of Appeal held that the Employment Tribunal had applied the objective test in s.98(4) ERA 1996 and that its conclusion that dismissal was unfair fell within the band of reasonable conclusions open to the tribunal. The EAT was wrong to set aside the ET decision and to dismiss the claim.

Employment Tribunal (decision registered 19 August 2009) found unfair dismissal; Employment Appeal Tribunal allowed the employer's appeal and set aside the ET decision and dismissed the claim (21 April 2010); Court of Appeal allowed the claimant's appeal and restored the ET decision [2011] EWCA Civ 267 (15 March 2011).