McCafferty v Royal Mail Group Ltd

In an unfair-dismissal appeal, the appellate tribunal must not retry factual issues merely because another inference was available. Where the Employment Tribunal majority had evidence permitting the employer reasonably to infer both unauthorised use of an expense account and concealment of that use, its conclusion was not perverse.

A dismissal for gross misconduct may fall within the range of reasonable responses despite long service and a clean record, particularly where the employment requires high standards of integrity. An Employment Judge errs by substituting a personal assessment of the appropriate sanction for the employer's reasonable response.

The claimant, a postman with nineteen years' service and a clean record, was dismissed for gross misconduct after using his employer's taxi account on 87 occasions to travel to work without specific authority.

An Employment Tribunal unanimously found that the investigation was reasonable and that the claimant knew the limits of his authority. By a majority of its lay members, it held that the employer reasonably inferred concealment and that dismissal was fair. The Employment Judge dissented, considering that dismissal was unfair.

The claimant appealed, contending that there was no evidential basis for the majority's finding of concealment and that dismissal was a perverse conclusion.

1. Appeal dismissed. The majority were entitled on the evidence to find that the employer had reasonable grounds for believing that the claimant knowingly used the taxi account without authority and had sought to conceal that fact.
2. The appeal was in substance an attempt to substitute a different factual inference. The claimant's provision of his name and address to the taxi company did not compel an inference that he had not misled management. The Tribunal could rely on his repeated references to travelling by van, despite extensive taxi use, and his failure to mention the closed taxi account when explaining lateness.
3. The majority's conclusion was a permissible factual option and was not perverse. The Employment Appeal Tribunal could not retry that factual question.
4. The dismissal was within the range of reasonable responses. Long service, a clean disciplinary record and the availability of a lesser sanction do not prevent dismissal where the established misconduct has undermined the integrity and trust required for the role.
5. The Employment Judge's contrary reasoning did not disclose legal error by the majority. It overlooked material findings and amounted to substituting her own view of the appropriate outcome for the employer's reasonable response.

The Tribunal also observed that lay members' common-sense experience may materially affect fact-finding in unfair-dismissal cases, and noted the continuing relevance of Employment Tribunals Act 1996, section 4(5), to tribunal composition.

• Employment Appeal Tribunal: appeal dismissed; the majority Employment Tribunal decision that the dismissal was fair was upheld.
• Employment Tribunal: claim dismissed by a majority decision. The reasons were registered on 22 November 2011; the Employment Judge dissented and would have found the dismissal unfair.