NORLAND MANAGED SERVICES LTD v MR L R HASTICK

Under section 98(4) of the Employment Rights Act 1996, the objective range of reasonable responses test applies to procedural fairness as well as investigation and sanction. A tribunal must not impose a judicial standard of recusal on an employer merely because a line manager has previously formed views about an employee’s competence.

When assessing sanction, the tribunal must start from the employer’s findings where they were honestly made on reasonable grounds after a reasonable investigation. It must not substitute its own view of disputed facts. Material errors in the tribunal’s reasoning require remission unless only one outcome was legally possible.

Norland dismissed its electrical engineer for gross misconduct after an incident involving a potentially live electrical switch. The Employment Tribunal at Watford upheld his unfair-dismissal claim, subject to a 20% reduction for contributory conduct and a 10% uplift. It found both procedural unfairness and that dismissal fell outside the range of reasonable responses.

Norland appealed on the grounds that the Tribunal had erred in its assessment of procedure, substituted its own factual view for Norland’s findings, and wrongly held dismissal unreasonable. The central issues were the proper application of section 98(4) of the Employment Rights Act 1996 to procedure and sanction, and the proper appellate disposal of the case.

1. Appeal allowed and remitted. The Tribunal made material errors of law. The case was remitted to a freshly constituted Employment Tribunal because the Appeal Tribunal could not conclude that only one result was possible.

2. Section 98(4) of the Employment Rights Act 1996 requires an objective reasonable-employer assessment of every aspect of dismissal, including procedure. The Tribunal expressly used the range of reasonable responses test for investigation and sanction, but not for its procedural conclusion. Its finding that the line manager was an inappropriate disciplinary officer because he had views about the employee’s competence applied an unduly forensic standard.

3. It is ordinarily permissible for a line manager to conduct a disciplinary hearing, even where the manager has formed views about the employee’s qualifications or competence. Such views may be relevant when assessing the honesty and reasonableness of the manager’s conclusions, but do not themselves require recusal. The employer had also used separate managers for investigation and discipline, consistently with the relevant ACAS guidance.

4. In assessing sanction, the Tribunal had to begin with Norland’s reasonably held findings. It had itself found the investigation reasonable, yet discounted Norland’s finding that the employee had received an electric shock. That finding was plainly open on the investigation, including the colleague’s account and the employee’s report of tingling. The Tribunal therefore substituted its own factual assessment and approached sanction from the wrong starting point.

5. On remission, the fresh Tribunal must assess the alleged procedural defects, including disclosure of technical advice, and whether the treatment of the other employee was sufficiently comparable to bear on sanction. The consequential findings on contributory conduct, Polkey, and the section 207A uplift fall with the principal finding and require fresh consideration.

• Employment Appeal Tribunal: Allowed Norland’s appeal and remitted the unfair-dismissal claim for fresh determination by a newly constituted Employment Tribunal: [2012] UKEAT 0005_12_1409.
• Employment Tribunal, Watford: On 15 September 2011, upheld the unfair-dismissal claim, reduced compensation by 20% for contributory conduct, and applied a 10% uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.