Vetco Gray UK Ltd v Garden

In an unfair-dismissal case concerning admitted misconduct, the tribunal must apply the statutory test in section 98(4) of the Employment Rights Act 1996. The Burchell approach is guidance, particularly where facts are disputed, but it does not replace the statutory wording or impose an evidential burden on the employer under section 98(4). An employer need not be correct in construing a workplace policy. The question is whether its interpretation was one open to a reasonable employer. A policy requiring permission for outside paid or unpaid activity during working hours may apply during sickness absence and to training for alternative employment. Dishonesty and continuation of the conduct after warning are material considerations in assessing the reasonableness of dismissal.

The employee was dismissed for gross misconduct while absent on sick leave and receiving sick pay. He had undertaken driving-instructor training during hours which would ordinarily have been working hours, without permission, denied doing so when challenged, and continued after being warned that such conduct could constitute misconduct.

The Employment Tribunal found the dismissal unfair, holding that the employee handbook did not prohibit the training and that the employer lacked reasonable grounds for its belief in misconduct. The employer appealed, alleging misinterpretation of the handbook, failure to consider material facts, and misapplication of the statutory reasonableness test.

1. Appeal allowed. The Employment Tribunal’s judgment was revoked and a finding of fair dismissal substituted. Remission was unnecessary because the facts were undisputed.
2. Clause 19.6 of the employee handbook did not absolutely prohibit activities during sickness absence. It imposed a precondition: an employee had to seek permission before undertaking paid or unpaid activity, unrelated to the employer’s business, during hours which would otherwise be working hours. The clause applied whether or not the employee was off sick and covered training for another occupation.
3. The employee was therefore in breach of the policy. The relevant question under section 98(4) of the Employment Rights Act 1996 was not whether the employer had construed the policy correctly, but whether its interpretation was one open to a reasonable employer.
4. The Tribunal also failed to consider the employer’s whole reason for dismissal. The employee’s dishonesty, his continuation of the activity after an express warning, and his acknowledgement that the conduct could constitute gross misconduct were material matters bearing on trust and confidence and the reasonableness of dismissal.
5. The Tribunal confused the statutory allocation of the burden of proof. The employer bore the burden under section 98(2) of establishing a potentially fair reason, but section 98(4) required an overall assessment of reasonableness. The Burchell approach is useful guidance, especially where facts are contested, but cannot displace the statutory test. On the established facts, dismissal was within the range of reasonable responses and was fair.

• Employment Appeal Tribunal: allowed the employer’s appeal, revoked the Employment Tribunal’s judgment, and substituted a finding that the employee was fairly dismissed.
• Employment Tribunal: found the dismissal unfair and awarded compensation. The registration date was 29 March 2011, with correction on 13 April 2011.