Asda Stores Ltd v Coughlan

In conduct unfair-dismissal cases, 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 penalty. The balancing of personal mitigation against established misconduct is primarily for the employer, provided the resulting decision remains within that range. An employer’s support policy for employees experiencing drug difficulties does not necessarily apply to deliberate misconduct involving the acquisition and possession of unlawful drugs at work. A dismissal for a single act of gross misconduct may therefore be fair where the procedure was sound and the sanction plainly fell within the reasonable range.

The respondent employee had 21 years’ unblemished service. He acquired and stored cannabis on the employer’s premises. The employer treated unlawful possession of drugs as gross misconduct and summarily dismissed him after disciplinary and appeal hearings.

The Employment Tribunal accepted that the reason related to conduct and that the conduct was reasonably categorised as gross misconduct. It nevertheless found the dismissal unfair under section 98(4) of the Employment Rights Act 1996, principally because insufficient weight had been given to personal mitigation and because of the employer’s drugs and alcohol policy. The employer appealed, contending that the tribunal had substituted its own view for that of the employer.

1. Appeal allowed. The Employment Tribunal’s finding of unfair dismissal was reversed and a finding that the dismissal was fair was substituted.
2. The tribunal had correctly directed itself on the governing law, including the principle that it must not substitute its own view for that of the employer. However, its reasons showed that it had nevertheless substituted its own assessment of the appropriate penalty.
3. The question under section 98(4) of the Employment Rights Act 1996 was whether dismissal fell within the range of responses open to a reasonable employer. If one group of reasonable employers might dismiss, the fact that another group might impose a lesser sanction does not make the dismissal unfair.
4. The weight to be given to personal mitigation in balancing it against the disciplinary offence was a matter for the employer. The managers’ evidence that they had considered the employee’s mitigation was not rejected as incredible merely because it was not fully recorded in their decision letters.
5. The Tribunal had misunderstood the employer’s drugs policy. The policy distinguished between support for employees experiencing drug difficulties and firm disciplinary action for misconduct involving drugs. On the facts, the policy did not apply to the employee’s deliberate acquisition and possession of cannabis on the employer’s premises.
6. There were no suggested procedural failings. Dismissal for the single act of gross misconduct plainly and unarguably fell within the range of reasonable responses.

• Employment Tribunal: Following hearings in 2008 and 2010, the Tribunal promulgated its judgment on 24 June 2010. It found the dismissal unfair, subject to an 85 per cent contribution finding.
• Employment Appeal Tribunal: The appeal was allowed. The Tribunal’s decision was reversed and a finding that the dismissal was fair was substituted.