Fuller v London Borough of Brent

Under Employment Rights Act 1996, an employment tribunal must objectively decide whether dismissal fell within the range of reasonable responses open to a reasonable employer. The range-of-reasonable-responses formulation is not statutory or mandatory, but assists in ensuring an objective assessment rather than substitution of the tribunal’s own view.

An employment tribunal’s reasons must be read fairly, in context and as a whole. Imperfect language or isolated expressions of the tribunal’s view do not establish legal error where its reasoning shows that it applied the objective test. An appellate tribunal must not substitute its own assessment for that of the employment tribunal unless there is an error of law or perversity.

Mrs Fuller, a school bursar employed by the London Borough of Brent, was dismissed for gross misconduct after intervening during staff restraint of a pupil and making allegations about a member of staff’s conduct. The Employment Tribunal held that the dismissal was unfair, although it found that the Council genuinely believed she had committed serious misconduct.

The Employment Appeal Tribunal allowed the Council’s appeal, set aside the Employment Tribunal’s liability decision and dismissed the claim: UKEAT/0453/09/JOJ. Mrs Fuller appealed. The central issue was whether the Employment Tribunal had unlawfully substituted its own view for that of the employer when applying section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed by majority. Mummery LJ, with whom Jackson LJ agreed, held that the Employment Tribunal had not erred in law. Its finding that the dismissal was unfair was restored.

2. Section 98(4) of the Employment Rights Act 1996 requires an objective assessment of whether the employer reasonably treated the misconduct as sufficient reason for dismissal. The question is whether dismissal fell within the range of reasonable responses open to a reasonable employer. The formulation is not mandatory, but guards against the tribunal substituting its own decision for that of the employer.

3. The Employment Tribunal had correctly directed itself and had asked the correct question. Although parts of its reasons used subjective language, its conclusion that no reasonable employer would have dismissed Mrs Fuller for the incident, taking the prior background properly into account, applied the required objective test. Its reasons had to be read fairly and as a whole, rather than through isolated phrases.

4. The Employment Appeal Tribunal therefore had no error of law on which to interfere. Appellate bodies, confined to questions of law, must not take over the Employment Tribunal’s fact-finding and evaluative role merely because they would reach a different view.

5. Mummery LJ further observed that, even if the Employment Tribunal had applied the wrong test, dismissal of the claim would not have been appropriate because a finding of fair dismissal was not inevitable. The proper alternative course would have been remittal to a differently constituted Employment Tribunal.

Moore-Bick LJ dissented on the principal reasoning. He considered that the Employment Tribunal had assessed the seriousness of the conduct by its own findings about the earlier warning, rather than by the disciplinary panel’s reasonable understanding. He would have remitted the limited issue of fairness to a fresh tribunal. Jackson LJ agreed with Mummery LJ.

• Court of Appeal (Civil Division) — Allowed Mrs Fuller’s appeal and restored the Employment Tribunal’s finding of unfair dismissal: [2011] EWCA Civ 267.
• Employment Appeal Tribunal — Allowed the Council’s appeal, set aside the Employment Tribunal’s decision and dismissed the unfair-dismissal claim: UKEAT/0453/09/JOJ.
• Employment Tribunal — In a decision registered on 19 August 2009, held that Mrs Fuller had been unfairly dismissed and later awarded compensation.