Scottish & Southern Energy Plc v Innes

Where an employee admits misconduct, the reasonable-investigation limb of the Burchell test may require little or no further investigation into whether the misconduct occurred. An employer dealing with misconduct is not ordinarily required to investigate medical matters advanced only in mitigation. That differs from a capability dismissal based on ill health, where reasonable investigation of the medical position is ordinarily required. An automatically unfair dismissal may nevertheless justify a Polkey reduction if fair dismissal would probably have occurred. Compensation may also be reduced substantially for the employee’s contributory conduct, including deliberate or repeated failures to perform work and breaches of workplace rules.

The Claimant, a chartered accountant, was dismissed for admitted misconduct involving excessive personal internet and email use, inaccurate timesheets and failure to complete allocated work. He had previously received a written warning for similar misconduct.

The Respondent accepted that the dismissal was automatically unfair because its Step 1 letter did not state that dismissal was contemplated. The Employment Tribunal awarded compensation but made no Polkey reduction and reduced compensation for contribution by only 15%. It considered that the Respondent had failed adequately to investigate the meaning of the internet-use report and whether the misconduct was linked to the Claimant’s depression and other health difficulties. The appeal concerned the proper approach to both reductions.

1. Appeal allowed and case remitted. The Employment Tribunal misdirected itself in concluding that the third limb of the Burchell test had not been satisfied. The Claimant admitted the relevant misconduct, which repeated misconduct for which he had received a written warning about three months earlier. In those circumstances, there was no material scope for further investigation into whether the misconduct had occurred.
2. The Tribunal wrongly treated the case as if it concerned capability arising from ill health. In a capability case, reasonable steps may be required to establish the employee’s true medical position, as illustrated by Spencer v Paragon Wallpapers and East Lindsey District Council v G E Daubney. This was a misconduct dismissal. The Claimant accepted responsibility for his actions and did not advance automatism or a comparable defence. The Respondent was therefore not ordinarily required to investigate his medical condition further merely because it was raised in mitigation.
3. The Tribunal was required to consider whether, absent the procedural defect, dismissal would have fallen within the range of reasonable responses. Relevant matters included the repeated misconduct, the extant warning, the conscious resumption of excessive internet use, the persistent failure to complete work, the medical information available and the Claimant’s mitigation. A substantial Polkey reduction was plainly open for consideration.
4. Automatic unfairness did not prevent a reduction for contribution under section 123(6). The Tribunal had found that the Claimant failed to perform work he was capable of performing, used the internet excessively and failed adequately to seek help or address his difficulties. Those matters went to the heart of the conduct causing dismissal. The 15 per cent reduction was so low as to be perverse.
5. The case was remitted to a freshly constituted Employment Tribunal to determine the extent of any Polkey reduction and the proper reduction for contribution.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Tribunal’s compensation assessment and remitted the issues of Polkey and contribution to a freshly constituted Tribunal.
• Employment Tribunal, Dundee: Found the dismissal automatically unfair and awarded £38,068.55, making no Polkey reduction and a 15 per cent reduction for contribution. The decision was registered on 25 May 2010.