Arriva Trains Wales v Conant (conjoined appeals: Walsh; Harber)

In misconduct dismissals, the tribunal must assess whether dismissal fell within the range of reasonable responses open to a reasonable employer. It must not substitute its own view of the appropriate decision. The same objective standard applies to the adequacy of the investigation.

Appellate bodies must respect the Employment Tribunal’s role as fact-finder and industrial jury. Intervention is justified only for an error of law, including perversity. Relevant mitigating circumstances may bear on the reasonableness of dismissal even if they do not determine whether conduct was grossly negligent. A disciplinary process need not be forensic or await the conclusion of separate criminal proceedings.

Three conjoined appeals concerned summary dismissals for alleged gross misconduct under section 98(4) of the Employment Rights Act 1996.

In Arriva Trains Wales v Conant and Yellow Pages Sales Ltd v Walsh, the Employment Tribunals had, by majority, found the dismissals unfair. The employers alleged that the tribunals had substituted their own views for those of the employers.

In Harber v Kelly Residential Ltd, the Employment Tribunal had found the dismissal fair. The principal issue was whether the investigation into an alleged inappropriate examination of a vulnerable resident was reasonable. The common issue was the proper approach to reasonableness, investigation and appellate review.

1. All three appeals dismissed. The Employment Tribunals had applied the correct legal approach and had not substituted their own views for those of the employers.
2. Under section 98(4) of the Employment Rights Act 1996, the question is whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal. The tribunal must apply the objective standards of the hypothetical reasonable employer and determine whether dismissal fell within the range of reasonable responses. It must not decide what it would itself have done.
3. In misconduct cases involving a belief or suspicion of misconduct, the employer must show a genuine belief, reasonable grounds for that belief and an investigation which was reasonable in all the circumstances. The range of reasonable responses standard applies to the investigation as well as to the sanction.
4. In Conant, the majority tribunal was entitled to find that the evidence did not reasonably establish that no other person could have removed the money, and that inconsistencies required further investigation. That was an evaluative conclusion open to it on the evidence.
5. In Walsh, the matters relied on by the majority—including training, the absence of a job description, the opportunity to rectify matters, additional duties and a clean record—were not strictly relevant to how gross the negligence was. They were relevant to whether dismissal was a reasonable sanction. The tribunal was entitled to conclude that dismissal was outside the range of reasonable responses.
6. In Harber, the tribunal was entitled to find that the employer had conducted as much investigation as was reasonable, given the serious allegation, the available witness evidence and the absence of further material witnesses. Fairness did not require forensic cross-examination, and the employer was not required to await the criminal process.

• Employment Tribunals: Conant and Walsh were found unfairly dismissed by majority decisions. Harber was found fairly dismissed.
• Employment Appeal Tribunal: The three appeals were heard together and dismissed. The Tribunal held that there was no error of law in the decisions under appeal.