Secretary Of State For Justice v Macdonald-Heaney

Under Employment Rights Act 1996, section 98(4), an employment tribunal must not substitute its own view for the employer’s decision. The question is whether dismissal fell outside the range of reasonable responses. A changed witness account should be examined, but an employer may reasonably accept a clear, consistent and plausible explanation without further investigation. A strict disciplinary policy may justify dismissal for assault by a prison officer, but it must preserve consideration of the seriousness of the misconduct, minor or technical cases and exceptional mitigation. An internal appeal conducted as a review need not be a rehearing. Procedural defects render dismissal unfair only where they materially affect the fairness of the overall process.

A Senior Prison Officer was dismissed for assaulting a prisoner after re-entering the prisoner’s cell following verbal abuse. The disciplinary decision-maker accepted the evidence of the prisoner and a junior officer whose account had changed. The officer’s appeal, conducted under a procedure requiring review of specified matters, was dismissed, as was a further appeal to the Civil Service Appeal Board.

An Employment Tribunal found the dismissal unfair. It criticised the investigation of inconsistencies, the application of a strict assault policy, the failure to consider mitigation and the handling of the internal appeal. The Department appealed, raising the reasonableness of the findings on evidence and sanction and the effect of the alleged procedural defects.

1. Appeal allowed. The finding of unfair dismissal was set aside and the claim was dismissed.
2. Under section 98(4) of the Employment Rights Act 1996, the Tribunal had to ask whether the employer’s decision fell outside the range of reasonable responses. It was not entitled to decide whether it would itself have accepted the witnesses’ evidence. The same restraint applied on appeal, although an appellate tribunal could examine whether the Tribunal had misapplied the non-substitution principle.
3. A change in a witness’s account requires consideration because it may indicate unreliability or improper pressure. Here, however, the explanations given by the junior officer were clear, consistent and plausible. The disciplinary decision-maker had addressed the central issue and was entitled to accept the evidence. The Tribunal had substituted its own assessment of the evidence.
4. The strict policy on assaults by prison officers was reasonable. It did not mandate automatic dismissal in every case. Each case had to be considered on its merits, including whether the assault was minor or technical and whether exceptional mitigation existed. The conduct found proved was sufficiently serious because the officer unnecessarily created a physical confrontation which he should have avoided. The absence of significant injury and ordinary verbal abuse did not make dismissal unreasonable.
5. The refusal to postpone the internal appeal was not, without demonstrated prejudice, sufficient to make the dismissal unfair. The appeal was a review rather than a rehearing. Deferring to the original decision-maker on factual findings was not an abdication of responsibility, provided the reviewer considered the matters required by the procedure and engaged with any genuine evidential inconsistency.
6. Even assuming that the appeal review was cursory, the defects did not vitiate the fairness of the dismissal when the disciplinary hearing and process were considered as a whole.

• Employment Tribunal: The Tribunal sitting at London South found the dismissal unfair. Its reasons were sent to the parties on 15 July 2008.
• Court of Appeal: The Department’s earlier appeal route followed dismissal of its Employment Appeal Tribunal appeal under rule 3(7) and refusal of a rule 3(10) application. Permission was granted, and the appeal was formally allowed by consent with remission to the Employment Appeal Tribunal.
• Employment Appeal Tribunal: The appeal was allowed and the unfair-dismissal claim was dismissed.