Kantoh v Kent & Medway NHS & Social Care Partnership Trust

In an unfair-dismissal case, the Employment Tribunal must assess the employer’s conduct under section 98(4) of the Employment Rights Act 1996. It must not substitute its own view or decide whether the employee was in fact guilty unless that issue is necessary, for example on remedy or wrongful dismissal.

The Tribunal’s reasons must identify the material issues, evidence and submissions and explain how they support the conclusion. Concise reasons and incorporation of documents are permissible, but shorthand findings cannot replace analysis of significant challenges. Where the reasons do not disclose the assessment of the investigation, the employer’s belief and the employee’s case, the decision should be set aside and remitted to a differently constituted Tribunal.

The Claimant, a staff nurse employed by an NHS Trust, was summarily dismissed for gross misconduct following allegations of repeated unwanted sexual conduct. The Employment Tribunal dismissed his unfair-dismissal claim and found that the investigation and disciplinary process were reasonable. His race-discrimination claim had been withdrawn.

On appeal, he argued that the Tribunal failed to explain why it rejected his evidence and challenges to the investigation, including alleged discrepancies in the complainant’s accounts. He also challenged the Tribunal’s unreasoned findings that the alleged incidents had occurred and that he was guilty. The central issues were whether the Tribunal’s reasons were adequate and whether it had correctly applied the statutory test of fairness.

1. Appeal allowed. The unfair-dismissal decision was set aside and the matter was remitted to a differently constituted Employment Tribunal. The race-discrimination issues no longer arose.
2. Under section 98(4) of the Employment Rights Act 1996, the Tribunal must assess whether the employer acted reasonably in treating conduct as a sufficient reason for dismissal. It must assess the employer’s conduct, not substitute its own view or decide what it would have done. In misconduct cases, the relevant considerations include reasonable investigation, a proper opportunity for the employee to present his case, reasonable belief in misconduct and an appropriate penalty.
3. The Tribunal’s reasons must enable the parties and the appellate court to understand how the decision was reached. They need not address every point and may incorporate documents or submissions. The appellate court must give a generous reading and avoid a hypercritical analysis. However, material challenges and evidence must be addressed sufficiently to disclose the reasoning.
4. The Tribunal failed to explain its findings that the alleged incidents occurred. It did not describe the Claimant’s account or address his evidence. It also treated significant developments in the complainant’s successive accounts as minor without explaining why, and did not link the evidence to the statutory questions of the genuineness and reasonableness of the employer’s belief.
5. The Tribunal should ordinarily separate the question whether the employer reasonably believed the employee guilty from the question whether the employee was actually guilty. Its firm, unreasoned findings of guilt were unnecessary and prejudicial. The EAT did not determine whether the Claimant was guilty or whether his name was cleared.
6. The new Tribunal was required to decide whether reasonable management, in the circumstances of the Trust and on the evidence available, could have formed the view that the Claimant was guilty of the misconduct alleged.

• Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal’s judgment registered with Reasons on 31 August 2010 and remitted the unfair-dismissal claim for rehearing by a differently constituted Tribunal.
• Employment Tribunal: found the dismissal fair and dismissed the unfair-dismissal claim. The race-discrimination claim was dismissed on withdrawal.