Circle Anglia Ltd v Simons

An appellate tribunal should not substitute its own assessment of the employee’s conduct or of the reasonable employer’s response for that of an Employment Tribunal which has correctly directed itself and reached a permissible conclusion.

In a misconduct dismissal, the reasonable range of responses applies both to the adequacy of the investigation and to dismissal as the sanction. A finding of gross misconduct does not make dismissal automatic. Fairness under section 98(4) requires consideration of all the circumstances, including material mitigation.

Assessment of contributory conduct is a fact-sensitive evaluative exercise for the Employment Tribunal. An appeal will not succeed merely because a different percentage could reasonably have been selected.

The claimant, a senior employee of the respondent, was dismissed for misconduct arising from abusive behaviour towards a colleague and an incident in which he threw a coaster.

A majority of the London Central Employment Tribunal held that the dismissal was unfair. It found deficiencies in the investigation and concluded that dismissal fell outside the range of reasonable responses. It reduced compensation by 55% for the claimant’s culpable conduct. The Employment Judge dissented, considering dismissal fair and, if it were unfair, contribution to be 100%.

The employer appealed, contending that the majority had substituted its own view for that of a reasonable employer, had failed to apply the proper approach to investigation, and had erred in assessing contribution.

1. Appeal dismissed. The Tribunal’s legal directions applied to both the majority and minority. They correctly incorporated the range-of-reasonable-responses approach to the investigation and to the ultimate decision to dismiss.

2. The Tribunal had not failed to apply the principles in Sainsbury’s Supermarkets Ltd v Hitt. Its direction that internal disciplinary proceedings are a management rather than judicial function, and that an overly legalistic analysis is inappropriate, was correct. It was nevertheless open to the majority to find that the investigation was insufficiently balanced and could not reasonably be relied upon.

3. Dismissal was not an automatic consequence of conduct described as gross misconduct. Under section 98(4) of the Employment Rights Act 1996, the Tribunal had to decide whether dismissal was reasonable in all the circumstances. The majority was entitled to treat the conduct as at the lowest end of gross misconduct and to attach weight to provocation, inadequate management of the working relationship, the claimant’s record, appraisal, mitigation and acceptance that a final warning was appropriate.

4. The majority’s conclusion that dismissal lay outside the range of reasonable responses was a permissible evaluative conclusion. The EAT could not replace it with its own assessment merely because the Employment Judge had reached the opposite conclusion.

5. The 55% reduction for contributory conduct disclosed no error of law. Contribution under section 123 was an assessment of blameworthy conduct, impression and discretion for the Tribunal. The difference between 55% and the employer’s proposed minimum of 70% did not justify appellate intervention.

6. The claimant’s application for preparation-time costs was refused. The employer’s unsuccessful appeal, although ultimately unpersuasive, was not unnecessary, unreasonable or misconceived.

• Employment Appeal Tribunal: dismissed the employer’s appeal and affirmed the majority decision that dismissal was unfair, including the 55% reduction for contributory conduct.
• Employment Tribunal, London Central: by majority, held the dismissal unfair and reduced compensation by 55%; the Employment Judge dissented.