Harber v Kelly Residential Ltd (t/a Portland Nursing Home) (conjoined appeals: Arriva Trains Wales v Conant; Yellow Pages Sales Ltd v Walsh; Harber v Kelly Residential Ltd)

In misconduct dismissals, the question under Employment Rights Act 1996, section 98(4), is whether dismissal fell within the range of reasonable responses open to a reasonable employer. The tribunal must assess the employer’s reasonableness objectively, but must not substitute its own view of the appropriate decision. The same range-of-responses standard applies to the investigation, the employer’s belief in misconduct and the sanction. Relevant mitigating circumstances may bear on whether dismissal was reasonable, even if they do not determine whether conduct was grossly negligent. On appeal, the Employment Appeal Tribunal must respect the Employment Tribunal’s fact-finding and may intervene only for an error of law, including perversity.

Three appeals concerning summary dismissal for alleged gross misconduct 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. The central issue was whether the tribunals had substituted their own views for those of the employers. In Harber v Kelly Residential Ltd, the employee challenged a finding that her dismissal following an alleged improper examination of a vulnerable resident was fair, principally on the ground that the investigation was inadequate.

The appeals required application of section 98(4) of the Employment Rights Act 1996, including the standards governing reasonable investigation, reasonable belief and appellate restraint.

1. All three appeals dismissed. The Employment Tribunals had applied the correct statutory test and had not substituted their own views for those of the employers.
2. Under section 98(4) of the Employment Rights Act 1996, the tribunal must decide objectively whether the employer acted reasonably in treating the conduct as sufficient reason for dismissal. The tribunal must not decide what it would have done as employer. There may be a range of reasonable responses, and dismissal is unfair only if it falls outside that range.
3. For alleged misconduct, the employer must show a genuinely held belief in misconduct, reasonable grounds for that belief and an investigation that was reasonable in all the circumstances. The seriousness of the allegation and its potential consequences may require especially careful investigation, but a disciplinary investigation need not be a criminal trial. The range-of-reasonable-responses standard applies to the investigation as well as to the decision to dismiss.
4. In Arriva, the majority were entitled to conclude that the employer lacked a proper basis for assuming that no person other than the employee could have removed the money and that inconsistencies required further investigation. This was not impermissible substitution.
5. In Yellow Pages, wilfulness was not required for gross negligence. The factors relied on by the majority, including previous good conduct, lack of training or a job description, additional duties and lack of opportunity to rectify matters, did not determine how gross the negligence was. They were nevertheless relevant to whether dismissal was a reasonable sanction. The employer was aware of those matters, so the tribunal could consider them even though the employee had not specifically raised them during the disciplinary process.
6. In Harber, the tribunal was entitled to find that the employer had investigated as much as was reasonable, having regard to consistent witness accounts, the physical circumstances and the seriousness of the allegation. The employer was not required to question an eyewitness again merely because the employee alleged mistake. Nor was it required to postpone the appeal until the separate criminal process ended.
7. The EAT’s role was confined to questions of law. It could not replace the Employment Tribunal’s tenable assessment with its own view, and should avoid hypercritical analysis of the tribunal’s reasons.

• Employment Appeal Tribunal: appeals in Arriva Trains Wales v Conant, Yellow Pages Sales Ltd v Walsh and Harber v Kelly Residential Ltd dismissed.
• Employment Tribunals: majority findings of unfair dismissal in the first two cases; finding of fair dismissal in the third case.