BAA Ltd v Davies

In a conduct dismissal, the statutory range of reasonable responses applies equally to the employer’s investigation and to the decision to dismiss. An employment tribunal must assess objectively whether the investigation actually undertaken was reasonable in all the circumstances. It must not begin by identifying further enquiries that might have been made, require an investigation equivalent to preparation for trial, or substitute its own preferred investigation.

Procedural fairness is fact-sensitive. The material issue concerning warning of dismissal is whether the employee in fact knew of that risk. There is no general rule preventing two employer representatives from questioning an employee, or preventing appropriate cross-examination at a disciplinary hearing.

A fire fighter was dismissed for gross misconduct after his employer concluded that he had assaulted a colleague during a shift handover. The disciplinary decision relied on nine matters, including the colleague’s injuries, the employee’s inability to explain them, and inconsistencies in his account. His internal appeal was rejected.

The Employment Tribunal held the dismissal unfair. It considered that the employer should have made enquiries of the police, given an earlier warning of possible dismissal, avoided questioning by two representatives at the disciplinary hearing, and investigated the colleague’s alleged prior conduct further at the appeal stage.

The employer appealed. The central issue was whether the Tribunal had applied the correct objective standard when assessing the reasonableness of the investigation and dismissal under section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed. By a majority, the Employment Appeal Tribunal set aside the finding of unfair dismissal and remitted the case to the same Employment Tribunal for a rehearing.

2. The Tribunal had failed to apply the approach in J Sainsbury plc v Hitt, [2003] ICR 111. The range of reasonable responses applies to the adequacy of an employer’s investigation as well as to the decision to dismiss. The Tribunal’s task was to consider the investigation actually undertaken and decide objectively whether it was reasonable in all the circumstances. It was wrong to start by asking what further enquiries could have been made, or to require an investigation designed to reach a conclusive, court-like determination of guilt.

3. The Tribunal had concentrated on whether the police might have confirmed injury to the employee, although the dismissing manager relied on nine cumulative factors. It made no finding as to what the police officer could properly have disclosed. Evidence of a later injury would not necessarily conflict with the employer’s evidence or disprove that the employee had been the aggressor. The Tribunal’s view that police enquiries ought to have been made showed an impermissible substitution of its own preferred investigation.

4. A v B, [2003] IRLR 405, did not support the Tribunal’s conclusion. Its serious and career-threatening factual context differed materially. Its observation that the gravity and consequences of an allegation matter simply reflected the requirement to consider all the circumstances; it did not qualify the guidance in Sainsbury.

5. The Tribunal had also overlooked evidence that the employee knew he was at risk of dismissal. Under Boyd v Renfrewshire Council, [2008] CSIH 36, the question is whether the employee was in fact aware of that risk, not how that knowledge was acquired. There was no general rule against questioning by two employer representatives or against testing an employee’s account by cross-examination.

6. Although the majority identified legal errors, it did not substitute a dismissal of the claim. The errors included failure to address the whole factual picture, inadequate reasons, and failure to apply the relevant law. A rehearing before the same Tribunal was therefore appropriate. Mr Thomson dissented, considering that the Tribunal had applied the reasonable-responses test and reached a conclusion with which the Appeal Tribunal should not interfere.

• Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the finding of unfair dismissal, and remitted the case to the same Tribunal for a rehearing: [2012] UKEAT 0047_11_2103.
• Employment Tribunal, Aberdeen: Held that the employee had been unfairly dismissed in a judgment registered on 7 July 2011.