Howe v London Borough of Hammersmith and Fulham

In an unfair-dismissal appeal, the question is whether the employer had a genuine and reasonably based belief in misconduct following a reasonable investigation, and whether dismissal fell within the range of reasonable responses. An employment tribunal must assess the employer’s decision-making process; it must not substitute its own view of the facts or sanction. The investigation required is shaped by the matters to be investigated and by the employee’s response. Where the employer has information strongly indicating dishonesty, and the employee offers no cogent explanation for matters within her own knowledge, the tribunal may find the investigation reasonable without obtaining medical evidence itself. A new point cannot ordinarily be raised for the first time in the Court of Appeal, particularly where it would require factual investigation and remission. Deliberate breach of an unchallenged workplace instruction may properly support a finding of gross misconduct and dismissal.

Patricia Howe appealed against the Employment Appeal Tribunal’s order of 26 November 2010, made after a Rule 3(10) hearing. The EAT had dismissed her challenge to the decision of the Watford Employment Tribunal dated 10 February 2010, which had dismissed her claim for unfair dismissal.

Ms Howe had been dismissed by the London Borough of Hammersmith and Fulham after it found that she had deliberately maintained dual employment despite an earlier instruction to relinquish one job, and had reported sick from night work while working as a teacher during the day. The employment tribunal held that the employer had a genuine belief in the misconduct, had conducted a reasonable investigation, and had acted within the range of reasonable responses. The central issue was whether the proposed grounds disclosed any arguable error of law with a real prospect of success.

1. Renewed application refused. Rimer LJ agreed with Mummery LJ that an appeal against the EAT’s order had no real prospect of success.
2. The employment tribunal had not substituted its own view for that of the employer. Its findings that the instruction against dual employment had been given, and that the employer was reasonably entitled to believe that Ms Howe had acted dishonestly, were assessments of the employer’s evidence and decision-making. The tribunal had expressly directed itself against substitution, and there were no cogent indications that it had nevertheless committed that error.
3. The investigation into the sickness allegations was adequate. The employer had identified several occasions on which Ms Howe reported sick to Hammersmith while working for Brent, including two occasions involving consecutive days. It showed her the relevant information, invited an explanation, allowed her to submit documents, and considered the material available. The reasonableness of an investigation depends on what had to be investigated. Where the information raised a strong inference of fraud and the employee provided no convincing explanation for matters essentially within her own knowledge, the tribunal was entitled to find the investigation reasonable. It was not the tribunal’s function to obtain medical or other evidence itself.
4. The tribunal was entitled to conclude that dismissal was within the reasonable range of responses. The employer’s appeal officer would have upheld dismissal on the dual-employment charge alone, and the tribunal had found that dismissal on that ground was a fair sanction.
5. Points that the original instruction was unreasonable, or that its breach was not gross misconduct, could not properly be raised for the first time in the Court of Appeal. They had not been pursued before the lower tribunals and were not pure points of law. Their determination would require factual investigation and remission, for which there was no justification. Litigation could not be made open-ended by introducing a new point after the opportunity to present the whole case had passed.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused; Rimer LJ held that an appeal against the EAT’s order would have no real prospect of success.
• Employment Appeal Tribunal: on 26 November 2010, His Honour Judge McMullen QC dismissed the Rule 3(10) application, directed that no further action be taken on the appeal, and dismissed the appeal.
• Watford Employment Tribunal: on 10 February 2010, Employment Judge Heal, Mr B Ludford-Thomas and Mrs Fraser dismissed the unfair-dismissal claim.