Carr Gomm Scotland Ltd v Sneddon

In a conduct dismissal, the tribunal must determine whether the employer held a genuine belief in misconduct, reached it after a reasonable investigation, and imposed a sanction within the range of reasonable responses. It must avoid substituting its own view of the facts or sanction.

A report from a single third party does not automatically require further investigation or corroboration. Circumstantial evidence, including similar admitted conduct and the employee’s general approach, may support the employer’s belief. In work involving vulnerable adults, conduct contrary to instructions and safeguarding policies may justify dismissal when the incidents are considered cumulatively.

An employer appealed against an Employment Tribunal decision finding that a care worker had been unfairly dismissed and awarding compensation. The dismissal followed two incidents involving a vulnerable adult: an alleged episode of aggressive and bullying conduct, reported by a neighbour, and admitted use of bad language and sarcasm.

The Employment Tribunal considered the investigation inadequate, treated the evidence as insufficiently corroborated, separated the incidents, and criticised aspects of the disciplinary and appeal processes. The central issue before the Employment Appeal Tribunal was whether the Tribunal had correctly applied the statutory test of reasonableness or had substituted its own view for that of the employer.

1. Appeal allowed. The Employment Tribunal’s judgment was reversed. A finding that the Claimant had been fairly dismissed was substituted, and his complaint was dismissed.

2. The Tribunal had to apply the guidance in BHS v Burchell [1978] IRLR 379 and Iceland Frozen Foods v Jones. Where genuine belief and a reasonable investigation were established, the remaining question was whether dismissal was a reasonable response open to the employer in all the circumstances. The Tribunal had to avoid the substitution mindset identified in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220.

3. The Tribunal was wrong to treat the neighbour’s evidence as uncorroborated. The Claimant’s admitted conduct and evidence of his general approach to the service user provided relevant circumstantial evidence. The neighbour’s prompt, clear account and identification of the Claimant were sufficient. A further interview was not required.

4. The Tribunal was also wrong to distinguish the admitted incident because the bad language was not directed at the service user. It was used in conversation with him, was contrary to the employer’s policies, and the Claimant’s explanation of mood matching demonstrated an aggressive approach.

5. Henderson v Granville Tours Ltd [1982] IRLR 494 did not establish that a third-party complaint must invariably be corroborated. It concerned circumstances in which other eyewitnesses could have been interviewed, which were absent here.

6. Considering the incidents cumulatively, the conduct was contrary to specific instructions, the service user’s Support Agreement and safeguarding policies. The vulnerable nature of the work, regulatory notification and reputational risk were relevant. Dismissal therefore fell within the range of reasonable responses. Any procedural criticism concerning the dismissing officer would, in any event, have been cured by the appeal process.

7. The Tribunal’s approach to compensation did not require determination. The EAT indicated that, under Employment Rights Act s.123(1), loss caused by a Disclosure Scotland entry rather than by the dismissal could not properly be attributed to the employer.

• Employment Appeal Tribunal: allowed the employer’s appeal against the Employment Tribunal’s judgment dated 27 April 2010, substituted a finding of fair dismissal, and dismissed the complaint.