Graham v. Secretary of State for Work and Pensions (Jobcentre Plus)

The Court of Appeal allowed the appellant's appeal in an unfair dismissal claim. The court applied the statutory test in section 98 of the Employment Rights Act 1996 and the well‑established Burchell approach: (1) whether the employer carried out a reasonable investigation, (2) whether the employer believed the employee was guilty of the misconduct alleged, and (3) whether the employer had reasonable grounds for that belief. The court held the Employment Appeal Tribunal erred by retrying factual issues and substituting its view for that of the Employment Tribunal on the critical point of when the employee became an "acquaintance" of the benefit customer. Because the dismissing officer had not clearly defined or established the date of the acquaintanceship, his belief that the employee accessed customer records whilst an acquaintance was not shown to be based on reasonable grounds. That undermined the employer's characterisation of the conduct as gross misconduct and rendered summary dismissal outside the band of reasonable responses.

This was an appeal from the Employment Appeal Tribunal which had allowed the respondent's appeal from an Employment Tribunal decision finding unfair dismissal. The appellant, a long‑serving Jobcentre manager, was summarily dismissed for alleged gross misconduct in assisting a vulnerable benefit customer. The dismissal rested on five allegations, the pivotal one being that the appellant had become "acquainted" with the customer and had, during that acquaintanceship, accessed his records and assisted him in ways contrary to Departmental standards.

Nature of the claim: an unfair dismissal claim seeking a finding that dismissal was outside the band of reasonable responses and therefore unfair; remedy was dealt with by remittal if appropriate.

Procedural history: Employment Tribunal (decision 18 October 2010) found dismissal unfair; Employment Appeal Tribunal (HHJ Peter Clark, decision 3 June 2011) allowed the respondent's appeal and dismissed the claim; Court of Appeal (this judgment) allowed the appellant's appeal and restored the ET decision, remitting remedy to the ET.

Issues framed:

• Whether either the ET or the EAT impermissibly substituted their own view of disputed facts (in particular the date when the "acquaintanceship" began) for the view of the employer's dismissing officer.
• Whether the employer's decision to dismiss was within the broad band or range of reasonable responses, given the misconduct established and all circumstances.

Court's reasoning:

• The court reiterated the Burchell tripartite approach (investigation, belief, reasonable grounds) and the s98(4) test of reasonableness by reference to the band of reasonable responses.
• The investigating officer's contemporaneous documents and decision letter did not clearly define what he meant by "acquaintance" or fix a date when the relationship began; his documents were equivocal. The ET was entitled to accept that the dismissing officer had not established reasonable grounds for believing the appellant had accessed records after any clear start of acquaintanceship.
• The EAT was wrong to rely on a single passage in later notes and to introduce a departmental poster definition not shown to have been relied on at the time of dismissal; in effect the EAT retried factual issues.
• On the proved conduct (one short episode of permitting the customer to use a computer while the smartcard remained in it, and taking the customer briefly into the canteen), the Department's own disciplinary policy characterised such conduct as at most "serious" misconduct for which dismissal was not the normal penalty. Given the absence of reasonable grounds for the pivotal allegation, the ET was entitled to conclude dismissal was outside the band of reasonable responses.

Outcome: the Court allowed the appeal and restored the Employment Tribunal's decision that the dismissal was unfair; issues of remedy were remitted to the ET.

Appeal allowed. The Court of Appeal held that the Employment Appeal Tribunal had impermissibly retried factual issues and substituted its view for that of the Employment Tribunal; the Employment Tribunal was entitled to conclude that the dismissing officer did not have reasonable grounds for his belief about the critical "acquaintanceship" allegation and therefore the respondent's decision to summarily dismiss fell outside the band of reasonable responses. The ET's decision that the dismissal was unfair was restored and remedies were remitted to the ET.

Employment Tribunal (Employment Judge Robinson) decision promulgated 18 October 2010: claim for unfair dismissal allowed. Employment Appeal Tribunal (HHJ Peter Clark UKEAT061010JOJ) decision dated 3 June 2011: allowed the Secretary of State's appeal and dismissed the claim. Court of Appeal (this judgment) allowed the appellant's appeal on 5 July 2012 and restored the Employment Tribunal decision, remitting remedy to the ET. Neutral citation for this appeal: [2012] EWCA Civ 903.