Barnet Enfield & Haringey Mental Health Trust v Mars

An Employment Tribunal commits an error of law where material findings central to its unfair-dismissal decision are demonstrably contrary to, or founded on a fundamental misunderstanding of, the evidence. Such errors may individually or cumulatively require the decision to be quashed and the claim reheard.

In assessing reasonableness, a tribunal must not substitute its own view for that of the employer or speculate without evidential foundation about matters bearing on the employer’s investigation and decision.

The employer appealed against an Employment Tribunal decision upholding Ms Mars’s complaint of unfair dismissal. Her other claims, including disability discrimination, protected-disclosure detriment or dismissal, holiday pay and breach of contract, had been dismissed and were not subject to a cross-appeal.

The appeal concerned alleged errors in the Tribunal’s treatment of evidence about a memory stick, the overlap between grievance and disciplinary processes, the dismissal decision-maker’s evidence, and the security and accessibility of patient files. The employer also contended that the Tribunal had substituted its assessment for that of the employer.

1. Appeal allowed. The Tribunal’s decision that the claimant had been unfairly dismissed was quashed. The unfair-dismissal claim was remitted to a differently constituted Employment Tribunal for a wholly fresh hearing.
2. The Tribunal’s findings on material issues were founded on clear misunderstandings of the evidence. Its conclusion that a witness had said the claimant produced a memory stick at a meeting was contrary to the evidence recorded in the Employment Judge’s own notes. That error materially affected its assessment of witness credibility.
3. The Tribunal also incorrectly found that record-keeping did not form part of the claimant’s grievance. The grievance expressly asserted that pressure, lack of support and management had affected her ability to keep clinical records up to date. That misunderstanding informed the Tribunal’s conclusions about the involvement of managers in both the grievance and disciplinary processes.
4. Further material errors concerned the evidence of the decision-maker about the memory stick and the evidence that the patient files had been kept in a locked office, with access only on an authorised basis. The Tribunal’s contrary finding was incompatible with uncontested evidence and with evidence recorded in its own decision.
5. Those errors, separately and cumulatively, were errors of law sufficient to determine the appeal. The Tribunal also appeared, in speculating that files might have been sabotaged despite evidence to the contrary, to have entered the forbidden territory of substituting its judgment for that of the employer. The Appeal Tribunal did not decide the remaining challenges, so that the fresh Tribunal would be free to determine all issues on the evidence and law.

• Employment Appeal Tribunal: Allowed the employer’s appeal, quashed the finding of unfair dismissal, and remitted that claim for a wholly fresh hearing.
• Employment Tribunal: Upheld the claimant’s unfair-dismissal claim. It dismissed her remaining claims, and there was no cross-appeal from those dismissals.