Arriva Trains Wales v Conant (conjoined appeals)

In misconduct dismissals, the tribunal must assess whether the employer acted reasonably under section 98(4) of the Employment Rights Act 1996. It must not substitute its own view of the appropriate decision. The range of reasonable responses applies both to the employer’s investigation and to the decision to dismiss.

An employer need not establish misconduct to the criminal standard. It must hold a genuine belief, based on reasonable grounds, following as much investigation as was reasonable in the circumstances. Serious allegations require careful investigation, including attention to potentially exculpatory evidence, but a disciplinary process need not be forensic or equivalent to a criminal trial. Appellate bodies must respect tenable tribunal decisions and intervene only for an error of law or perversity.

Three conjoined appeals concerned summary dismissals for alleged gross misconduct. In Arriva Trains Wales v Conant and Yellow Pages Sales Ltd v Walsh, the Employment Tribunals’ majorities found unfair dismissal. In Harber v Kelly Residential Ltd, the Tribunal found the dismissal fair.

The employers challenged the first two decisions on the ground that the Tribunals had substituted their own views for those of the employers. Mrs Harber challenged the adequacy of the investigation and related procedural matters. The central questions were how section 98(4) of the Employment Rights Act 1996 applied to misconduct investigations and sanctions, and the proper limits of appellate review.

1. All three appeals dismissed. The Employment Appeal Tribunal held that the Employment Tribunals had applied section 98(4) of the Employment Rights Act 1996 correctly and had not substituted their own views for those of the employers.
2. The tribunal’s task is to decide objectively whether dismissal fell within the range of reasonable responses open to a reasonable employer. That range applies to the investigation as well as to the sanction. The EAT must not substitute its own view for that of the employer or for a tenable view reached by the Employment Tribunal. It may intervene only where an error of law, including perversity, is established (see paras [23]-[34], [45]-[46]).
3. In the Conant appeal, the Tribunal was entitled to find that the absence of the cash bag, limited CCTV evidence and discrepancies in witness accounts meant that further investigation was reasonably required. It was entitled to conclude that the employer could not properly treat the claimant as the only possible person responsible (paras [37]-[46]).
4. In the Walsh appeal, wilfulness was not an essential element of gross negligence. The factors relied upon by the majority, including the claimant’s clean record, lack of training and job description, additional duties and absence of an opportunity to rectify matters, were not strictly relevant to whether negligence was gross. They were relevant to whether dismissal was a reasonable sanction. The majority was entitled to conclude that dismissal was outside the range of reasonable responses (paras [50]-[61]).
5. In the Harber appeal, the employer had reasonable grounds for its belief and had undertaken as much investigation as was reasonable, having regard to the serious allegation and the available evidence. Fairness did not require further questioning of the eyewitness, cross-examination of witnesses or postponement of the appeal pending the criminal process. The Tribunal was entitled to uphold the dismissal (paras [64]-[73]).
6. The withdrawn Article 6 ground did not justify a costs order. The appeals therefore all failed (para [74]-[75]).

• Employment Appeal Tribunal: The three conjoined appeals from Employment Tribunal decisions all failed. The decisions under appeal were respectively findings of unfair dismissal in the Conant and Walsh cases and a finding of fair dismissal in the Harber case.