Gateshead City Council v Hope

An Employment Tribunal must assess whether the employer acted reasonably, rather than substitute its own view of the evidence or the appropriate response. In a conduct dismissal, the Burchell questions remain whether the employer genuinely believed in the misconduct, had reasonable grounds for that belief, and conducted as much investigation as was reasonable in the circumstances. Once the employer establishes a potentially fair reason, the burden of proof on the reasonableness of dismissal is neutral. The seriousness of the employee’s role, any existing warning, and the circumstances of the alleged misconduct may be relevant to the range of reasonable responses. An appeal will be allowed where the Tribunal’s reasoning shows that it applied an absolutist standard, required every possible investigation step, or placed the burden on the employer.

A teacher employed by Gateshead City Council received a final written warning after earlier disciplinary proceedings. After returning to work, he was suspended again following allegations concerning his interaction with staff and pupils, including making a racist joke. Following a disciplinary hearing, the Council dismissed him, relying in part on the existing warning. His internal appeal failed.

The Employment Tribunal upheld his complaint of unfair dismissal. It found that the decision-maker lacked reasonable grounds for believing the misconduct had occurred, that the investigation was unreasonable because two pupils had not been interviewed, and that dismissal fell outside the range of reasonable responses. The Council appealed, principally alleging substitution of the Tribunal’s view and a misdirection concerning the burden of proof.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the matter was remitted for a complete rehearing before a differently constituted Employment Tribunal.
2. Under sections 94 and 98 of the Employment Rights Act 1996, and the approach in British Home Stores Ltd v Burchell [1978] IRLR 379, the Tribunal had to examine whether the employer genuinely believed that the misconduct had occurred, whether there were reasonable grounds for that belief, and whether the investigation was reasonable in the circumstances. It then had to consider whether dismissal fell within the broad range of reasonable responses.
3. The Tribunal correctly directed itself that it must not substitute its own decision for that of the employer, but its reasoning showed that it had done so. It adopted an absolutist approach to the evidence, formed its own adverse view of a witness, and treated the absence of interviews with two pupils as making the investigation unreasonable. The relevant question was whether the employer’s view and investigation were reasonable, not whether further inquiries could have been made. The approach was consistent with the principle in Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 that an employer need not make every conceivable inquiry, and with the principle in Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235 that the Tribunal must not substitute its own evaluation of a witness for that of the employer.
4. Once the employer has established a potentially fair reason for dismissal, neither party bears the burden of proof on whether the dismissal was reasonable. The burden is neutral: Sheffield Health & Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09. The Tribunal’s repeated references to a burden upon the employer, read with its other errors, demonstrated a further misdirection.
5. The appeal was not allowed on the alleged inconsistency in the Tribunal’s reasoning or on the reasons challenge alone. Those matters did not alter the conclusion that grounds 1 and 2 were made out. Substitution of the EAT’s own decision was inappropriate, so the case was remitted for rehearing.

• Employment Tribunal: In a written decision delivered in September 2010, upheld the employee’s unfair dismissal complaint.
• Employment Appeal Tribunal: Allowed the Council’s appeal on substitution and burden-of-proof grounds, and remitted the matter for a complete rehearing before a differently constituted Tribunal.