Industrial And Municipal Projects Ltd v Boyle

In an unfair dismissal case, the tribunal must apply the objective reasonable-employer test. It must determine whether the employer genuinely believed in the alleged misconduct, whether that belief followed a reasonable investigation, and whether reasonable grounds supported it. Only if those requirements are satisfied must it consider whether dismissal fell within the range of reasonable responses. A tribunal does not substitute its own view merely by evaluating evidence or criticising investigative failures. Where reasonable grounds for the belief are absent, it need not assess the sanction. In wrongful dismissal proceedings, the court decides what actually happened and whether the employee committed a repudiatory breach, rather than examining the employer’s perception.

The respondent appealed against an Employment Tribunal judgment finding that Mr Boyle had been unfairly and wrongfully dismissed. Mr Boyle had been dismissed during an earn-out period after disputes concerning alleged misrepresentations about employees at the respondent’s Bradford operation and an alleged unauthorised proposal to close that operation.

The Employment Tribunal found that the investigation was materially inadequate, that the dismissing officer lacked reasonable grounds for believing Mr Boyle guilty of gross misconduct, and that Mr Boyle had not breached his contract. The appeal challenged the tribunal’s credibility findings, its approach to substitution, its assessment of the investigation and its failure to consider dismissal as a reasonable sanction.

1. Appeal dismissed. The Employment Tribunal’s findings of unfair dismissal and wrongful dismissal disclosed no appealable error.

2. For unfair dismissal, the tribunal correctly applied Employment Rights Act 1996 sections 98(2) and 98(4), together with the guidance in British Home Stores Ltd v Burchell, Iceland Frozen Foods v Jones, Sainsbury’s Supermarkets v Hitt and Orr v Milton Keynes Council. The employer must have a genuine belief in misconduct, formed after a reasonable investigation, with reasonable grounds supporting the belief. Only then does the tribunal consider whether dismissal fell within the range of reasonable responses.

3. The objective test is that of the reasonable employer. The tribunal must not substitute its own decision or its own view of witness credibility, but may examine whether the investigation and decision-making process were reasonable. The respondent’s available administrative resources included those of the Tracey Group. The tribunal was entitled to find that the failure to interview key witnesses, the use of a prejudicial investigative remit, inconsistencies in witness statements, the failure to interview Mr Boyle and the inadequate disciplinary inquiries placed the investigation well outside the reasonable range.

4. The tribunal was also entitled to conclude that irrelevant information concerning the vehicle operator’s licence matter should not have influenced the decision, particularly without giving Mr Boyle an opportunity to comment. Since reasonable grounds for the belief in misconduct were absent, there was no need to consider whether dismissal was a reasonable sanction.

5. For wrongful dismissal, the court had to decide whether Mr Boyle had in fact committed gross misconduct amounting to a material breach of contract. The tribunal was entitled to accept his evidence and find that he had corrected the misunderstanding about Mr McKeown’s resignation and had not represented that closure of the Bradford operation had been decided.

6. The appeal involved impermissible microscopic scrutiny of the tribunal’s reasons. Read fairly and as a whole, the reasons were sufficiently clear.

• Employment Tribunal, Glasgow: On 7 October 2009, with written reasons issued on 27 January 2010, found that Mr Boyle had been unfairly and wrongfully dismissed and awarded £19,560.
• Employment Appeal Tribunal: Dismissed the employer’s appeal.