EAGA Plc v Tideswell

Under section 98(4) of the Employment Rights Act 1996, an employment tribunal must review the employer’s investigation, beliefs and decision by applying the standard of reasonableness. It must not decide whether the employee committed the misconduct by substituting its own factual findings or view of the witnesses. The same caution applies to the appellate tribunal: it must determine whether the correct legal test was applied, without substituting its own view of the employer’s reasonable response. A tribunal’s reference to its own factual opinions is not automatically fatal, but its reasoning must be examined as a whole. Where the tribunal has applied the wrong test, the appeal must be allowed and the unfair-dismissal question remitted for a fresh decision.

EAGA Plc dismissed Mr Tideswell for gross misconduct after concluding that he had worked on a ladder without attaching his safety harness. The disciplinary and appeal decision-makers accepted the evidence of two managers, while Mr Tideswell relied on evidence from a colleague and a homeowner.

By a majority, the Employment Tribunal upheld the unfair-dismissal complaint. The Employment Judge dissented. The majority considered that the employer should not have preferred the managers’ evidence and criticised the investigation. EAGA appealed on the ground that the majority had substituted its own view for that of the employer. The central issue was whether the tribunal had correctly applied section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed. The Employment Tribunal majority applied the wrong legal test under section 98(4) of the Employment Rights Act 1996. The case was remitted to a differently constituted tribunal for an entirely fresh determination of whether the dismissal was fair or unfair.
2. At each stage of the statutory enquiry, the tribunal must review the employer’s actions, reasons and decisions by asking whether they were reasonable. It must determine what findings the employer made and whether those findings were reasonably open to it. The tribunal must not decide the case by making its own findings and then assessing the employer’s conduct against them.
3. The majority’s conclusion that the managers could not honestly have formed the view they expressed was its own finding about their honesty. The correct question was whether the dismissing officer genuinely accepted that account and whether it was reasonable, on the evidence available, to do so. A tribunal must distinguish between deciding that witnesses were dishonest and deciding that the employer reasonably regarded them as honest but was mistaken.
4. Reliance on a tribunal member’s personal experience of ladders and on evidence heard at the tribunal may indicate a substitution mindset, particularly when combined with the tribunal’s own assessment of the employer’s witnesses. The appellate tribunal must, however, read the reasons as a whole. A tribunal’s reference to its own views is not necessarily fatal if it also answers the correct statutory question.
5. The Employment Appeal Tribunal’s function is confined to questions of law. It could not substitute its own decision on fairness, even though Mr Tideswell had potentially powerful arguments to advance on remission.

• Employment Appeal Tribunal: allowed EAGA Plc’s appeal from the majority decision of the Employment Tribunal dated 21 October 2010 and remitted the case to a differently constituted tribunal.
• Employment Tribunal: by a majority, upheld Mr Tideswell’s complaint of unfair dismissal; the Employment Judge dissented.