Rodger (Builders) Ltd v MacDonald

In an unfair dismissal case involving alleged negligence or incompetence, the tribunal must apply the Burchell framework. It must decide whether the employer conducted a reasonable investigation, whether that investigation gave reasonable grounds for believing the employee guilty, and whether the employer genuinely held that belief. It must then consider whether dismissal was a reasonable sanction.

A tribunal must not substitute its own view or treat an employer’s failure to undertake a risk assessment as automatically making dismissal unfair. It must address the employer’s investigation and belief directly, and give reasons on every substantive issue raised, including contributory conduct.

A crane driver was dismissed for gross negligence after a crane toppled while he was driving to a customer’s alternative site. The Employment Tribunal found the dismissal unfair and awarded £8,112 compensation.

The employer appealed on liability and remedy. The loss ground was withdrawn, save for contributory conduct. The central issue was whether the Tribunal had properly considered the reasonableness of the investigation, the grounds for the employer’s belief in negligence, the employer’s actual belief, and contribution to the loss.

1. Appeal allowed. The liability issue was remitted to a differently constituted Employment Tribunal. The issue of contributory conduct was also remitted. The employer’s primary loss calculation was not reopened.
2. The Tribunal had failed to apply the approach in British Home Stores v Burchell. It should have considered, first, whether the employer carried out a reasonable investigation into the alleged negligence; secondly, whether it was reasonable, on the basis of that investigation, to believe that the employee was negligent; and thirdly, whether the employer actually held that belief. It also had to consider whether dismissal was a reasonable sanction.
3. The Tribunal’s findings about the claimant’s speed and the subsidence of the track did not answer those questions. The relevant issue was not the speed actually travelled, but the speed which it was reasonable for the employer to believe the claimant had travelled. Similarly, the Tribunal had to consider whether the cause of the accident had been adequately investigated.
4. The absence of a risk assessment did not by itself make the dismissal unfair. Even if the employer should have checked whether the client had undertaken a risk assessment, dismissal could still be fair if, after a reasonable investigation, the employer reasonably concluded that the track was passable and that the accident resulted from driver error.
5. The Tribunal also failed to address contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996. That omission breached the duty to give reasons on all substantive issues raised by the parties.
6. The Employment Tribunal was directed to determine the remitted issues on the evidence and submissions before it, uninfluenced by the EAT’s observations on factual matters.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s finding of unfair dismissal. Liability and contributory conduct were remitted to a differently constituted Employment Tribunal.
• Employment Tribunal: found the dismissal unfair and awarded compensation of £8,112.