Jobcentre Plus Department Of Work And Pensions (DWP) v Graham

In an unfair dismissal case based on misconduct, an Employment Tribunal must assess the employer’s decision within the statutory range of reasonable responses. It must not substitute its own view of the employee’s conduct or the appropriate sanction for that of the employer.

Where the employer honestly believed that misconduct had occurred, had reasonable grounds for that belief following a reasonable investigation, and used a fair procedure, the question is whether dismissal fell within the range of reasonable responses. A dismissal may be fair even though another reasonable employer might have imposed a lesser sanction.

The claimant, a long-serving Jobcentre manager, was summarily dismissed for four cumulative breaches of the Department’s standards of behaviour policy while assisting a vulnerable job applicant who had become an acquaintance. Her internal appeal and appeal to the Civil Service Appeals Board failed.

The Liverpool Employment Tribunal upheld her unfair dismissal complaint. The Department appealed, arguing that the Tribunal had substituted its own view for that of the dismissing officer when deciding that dismissal fell outside the range of reasonable responses.

1. Appeal allowed. The Employment Tribunal’s decision was set aside. The claim was dismissed without remission.
2. The Tribunal correctly directed itself that the employer had to establish conduct as a potentially fair reason under Employment Rights Act 1996, section 98(4), and that it must not substitute its own view for that of the employer.
3. Despite that direction, the Tribunal asked what the claimant had actually done wrong and assessed the circumstances subjectively. Its observations that she was helping a vulnerable person and was substantially doing her job addressed the Tribunal’s own assessment, rather than the dismissing officer’s concern that she had assisted an acquaintance in breach of a known policy.
4. The investigation was found to have been full, and there was no suggestion that the procedure was unfair. The dismissing officer had honestly found all four charges proved and had treated them cumulatively as gross misconduct.
5. On the relevant findings, including the claimant’s access to records, handling of job-search interviews, taking the applicant into staff areas, and leaving her smart card in an unattended computer, dismissal plainly and unarguably fell within the range of reasonable responses. The policy’s purpose of ensuring perceived equal treatment of customers was justified.

• Employment Appeal Tribunal: Allowed the Department’s appeal from the Liverpool Employment Tribunal, set aside the finding of unfair dismissal, and dismissed the claim.
• Liverpool Employment Tribunal: Upheld the claimant’s complaint of unfair dismissal in a judgment promulgated on 18 October 2010.