Yellow Pages Sales Ltd v Walsh (Unfair Dismissal : Reasonableness of dismissal)

Under section 98(4) of the Employment Rights Act 1996, 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 investigation and to the choice of sanction.

Relevant circumstances may include training, job responsibilities, management support, previous record, mitigating circumstances and whether the employee had an opportunity to rectify matters. Conduct may amount to gross negligence without being wilful. Even where gross negligence is reasonably found, dismissal may nevertheless fall outside the range of reasonable responses.

Appellate bodies must respect the Employment Tribunal’s factual findings and may interfere only for an error of law or perversity.

Three appeals were heard together. In Arriva Trains Wales v Conant and Yellow Pages Sales Ltd v Walsh, the employers challenged majority Employment Tribunal decisions finding unfair dismissal. In Harber v Kelly Residential Ltd, the employee challenged a finding that her dismissal was fair.

The appeals concerned summary dismissals for alleged gross misconduct, including suspected mishandling of money, alleged managerial gross negligence and an alleged improper clinical examination. The central issues were whether the tribunals had substituted their own views for those of the employers, whether the investigations were reasonable, and whether dismissal fell within the statutory range of reasonable responses.

1. Appeals dismissed. The Employment Appeal Tribunal held that all three Employment Tribunals had applied the correct approach under section 98(4) of the Employment Rights Act 1996.
2. The tribunal’s task is to assess objectively whether the employer acted reasonably in treating the conduct as sufficient reason for dismissal. It must not decide what it would have done itself. The range of reasonable responses applies both to the investigation and to the decision to dismiss.
3. In the Arriva appeal, the majority were entitled to find that discrepancies in witness accounts, the destruction of the relevant cash bag and limited CCTV evidence placed a reasonable employer on notice that further investigation was required. They had not substituted their own views for those of the employer.
4. In the Yellow Pages appeal, the Employment Tribunal was entitled to distinguish between the question whether conduct was grossly negligent and the separate question whether dismissal was a reasonable sanction. Wilfulness was unnecessary to establish gross negligence. Training, the absence of a job description, the employee’s previous clean record, additional duties, the absence of an opportunity to rectify matters and other surrounding circumstances were relevant to the sanction, even if not strictly relevant to how gross the negligence was. The majority were entitled to conclude that dismissal was too severe.
5. In the Harber appeal, the investigation fell within the range of reasonable responses. The employer had considered consistent eyewitness and contemporaneous evidence, the physical circumstances and the absence of an apparent reason for fabrication. There was no legal requirement to question the eyewitness further, permit forensic cross-examination, or await the conclusion of the criminal investigation before hearing the appeal.
6. Appellate bodies must avoid substituting their own view for that of the Employment Tribunal. The appeals jurisdiction is confined to questions of law, including perversity, and the tribunal’s decision must be read fairly and in the round.

• Employment Appeal Tribunal: Appeals in the three conjoined cases dismissed.
• Employment Tribunals: Majority decisions found unfair dismissal in Arriva Trains Wales v Conant and Yellow Pages Sales Ltd v Walsh; dismissal was found fair in Harber v Kelly Residential Ltd.