SPS Technologies Ltd v Chughtai

An Employment Tribunal must decide whether the employer acted within the range of reasonable responses. It must not substitute its own assessment of a claimant’s credibility, or its preferred conclusion from the evidence, for the employer’s reasonable belief.

Alleged inconsistency in disciplinary treatment requires a proper comparison. Where one employee admits serious misconduct and a thorough investigation yields no evidence sufficient to establish misconduct by another, their cases are not truly comparable. The employer may rationally discipline the former without disciplining the latter.

An earlier procedural defect may be cured by a fair internal appeal. Dismissal for admitted falsification of safety-critical records was plainly within the range of reasonable responses.

The claimant, a long-serving laboratory controller in the aerospace fastener industry, admitted falsifying test records. He maintained that his manager knew of and approved the practice. The employer investigated extensively but found no forensic evidence against the manager. The claimant was summarily dismissed, and an internal appeal upheld that decision.

By a majority, the Employment Tribunal found the dismissal unfair. It held that the manager’s non-suspension, the handling of the investigation and apparent predetermination of the disciplinary decision undermined the process. It made no Polkey deduction and found 30 per cent contributory conduct. The Employment Judge dissented.

The employer appealed on the ground that the majority had substituted its own view for that of the employer and had erred in its approach to comparative treatment and remedy.

1. Appeal allowed; claim dismissed. The Tribunal majority impermissibly substituted its own view of the claimant’s credibility for the employer’s assessment. Having accepted the claimant’s account after hearing him give evidence, the majority concluded that the employer ought also to have accepted it. That was inconsistent with the required assessment of the employer’s reasonable belief and conduct.

2. The majority also failed to ask whether the employer’s differing treatment of the claimant and his manager fell outside the range of reasonable responses. The claimant admitted falsifying records. By contrast, a detailed investigation had produced no forensic evidence that the manager had authorised or committed falsification. On the Tribunal’s unanimous findings, the employer’s conclusion that the manager was not proved guilty was necessarily reasonable.

3. The cases were not truly comparable. Had evidence established that the manager was complicit, the appeal officer would have dismissed both employees. This was therefore not an irrational disparity of disciplinary treatment of the kind considered in Securicor Ltd v Smith (1989) IRLR 356 (CA).

4. The employer had in any event undertaken a thorough investigation despite the claimant’s early admission. In a safety-critical business, dismissal for admitted fabrication of test data was plainly within the range of reasonable responses. The apparent predetermination at the first disciplinary hearing was cured by the impartial internal appeal.

5. Obiter: if unfair dismissal had been upheld, the EAT would have substituted a 100 per cent finding of contributory conduct and a corresponding 100 per cent Polkey deduction.

• Employment Appeal Tribunal: allowed the employer’s appeal and set aside the majority finding of unfair dismissal.

• Employment Tribunal: by a majority judgment promulgated on 22 December 2011, found the dismissal unfair, made no Polkey deduction and assessed contributory conduct at 30 per cent. The Employment Judge dissented. A remedy judgment dated 5 April 2012 assessed compensation at £43,330.19.