Graham v The Secretary of State for Work And Pensions (Jobcentre Plus)

In a misconduct dismissal, the Employment Tribunal must assess the employer’s reasonable investigation, actual belief in misconduct, and reasonable grounds for that belief. It must then decide objectively whether dismissal fell within the broad range of reasonable responses. It must not substitute its own view of the facts or sanction.

However, the Tribunal may examine the dismissing officer’s actual contemporaneous reasoning. An unclear or unsupported finding of misconduct cannot properly contribute to a conclusion that the employee committed gross misconduct. An appellate tribunal may not re-determine the facts unless the Tribunal’s findings were perverse. The inquiry remains a practical assessment of the actual employer in its circumstances.

The appellant, a long-serving Jobcentre manager, was summarily dismissed for alleged gross misconduct after assisting a vulnerable benefit customer. The allegations included accessing his records while he was said to be an acquaintance, taking him into a staff area, and leaving him at a computer with her Smartcard available.

The Employment Tribunal upheld her unfair-dismissal claim. It held that dismissal was outside the range of reasonable responses. The Employment Appeal Tribunal allowed the employer’s appeal, set aside that decision and dismissed the claim without remission.

On the appellant’s appeal from the EAT decision UKEAT061010JOJ, the central issues were whether the Tribunal or the EAT had impermissibly substituted its factual assessment for that of the proper decision-maker, and whether summary dismissal was within the range of reasonable responses.

1. Appeal allowed unanimously. The court restored the Employment Tribunal’s finding that the dismissal was unfair. Questions of remedy were remitted to the Employment Tribunal.

2. Under section 98(4) of the Employment Rights Act 1996, the Tribunal had to consider whether there had been a reasonable investigation, whether the employer believed the employee guilty, and whether it had reasonable grounds for that belief. If those matters were established, it then had to determine objectively whether dismissal was within the broad range of reasonable responses. The Tribunal must not decide what it itself would have done: British Home Stores v Burchell [1978] IRLR 379, Foley v Post Office [2000] ICR 1283, and Iceland Frozen Foods Ltd v Jones [1983] ICR 17.

3. The Tribunal was entitled to investigate the dismissing officer’s actual contemporaneous belief and the grounds for it. The employer’s policy did not define an “acquaintance”, and the dismissal materials were equivocal about when that relationship began. The Tribunal could therefore conclude that the officer lacked reasonable grounds for treating the employee’s earlier access to records as misconduct. The EAT impermissibly re-tried that factual issue by relying on a later definition and one answer in oral evidence. It could substitute findings only if the Tribunal’s findings were perverse.

4. That error was material. The unsupported allegation had contributed to the conclusion that the employee had committed gross misconduct. The remaining conduct included a single admitted Smartcard incident, categorised by the employer’s own policy as serious rather than gross misconduct, and the canteen incident. The Tribunal was entitled to find that their cumulative treatment as gross misconduct and summary dismissal fell outside the reasonable range.

5. The Tribunal was also entitled to take account of the employer’s decision not to suspend the employee and to permit her to continue similar work with computer access. That was relevant to whether the employer could reasonably regard trust and confidence as irretrievably destroyed. Pill LJ added that the reasonable-employer inquiry is practical: it assesses the actual employer in its circumstances, not an artificial hypothesis.

• Court of Appeal (Civil Division) — allowed the employee’s appeal, restored the Employment Tribunal’s unfair-dismissal decision, and remitted remedy: [2012] EWCA Civ 903.
• Employment Appeal Tribunal — allowed the employer’s appeal, set aside the Employment Tribunal’s decision, and dismissed the unfair-dismissal claim without remission: UKEAT061010JOJ.
• Employment Tribunal — allowed the employee’s unfair-dismissal claim in a decision promulgated on 18 October 2010.