Southampton City Council v Burnett

In a misconduct dismissal, the employer establishes the potentially fair reason by showing the facts or beliefs which caused the dismissal. Where misconduct is the undisputed reason relied on, it need show a genuine belief in the misconduct; it need not prove the underlying misconduct or demonstrate that the decision-maker made findings of primary fact.

The separate question under section 98(4) of the Employment Rights Act 1996 remains whether the employer had reasonable grounds for that belief after a reasonable investigation. That question is for the Employment Tribunal and cannot be predetermined on appeal.

The claimant, a teacher at a pupil referral unit, was summarily dismissed after an incident involving physical contact with a pupil. The employer relied on conduct. Its internal appeal upheld the dismissal.

The Employment Tribunal found the dismissal unfair because the appeal decision-maker had not identified findings of fact showing what the claimant had done wrong. It later ordered reinstatement.

The employer appealed both the liability decision and the reinstatement order. The central issue was whether the Tribunal had wrongly required proof or findings of the alleged misconduct at the stage of identifying the employer’s reason for dismissal.

1. Appeals allowed. The Employment Tribunal erred in law by holding that the employer had failed to establish conduct as the reason for dismissal because its decision-maker had not made findings of fact about the incident. The relevant reason is the set of facts or beliefs held by the employer which caused dismissal. On the material before the Tribunal, conduct was not challenged as the employer’s asserted reason.

2. For that purpose, a genuine belief in the alleged misconduct sufficed. This was not a case in which the claimant alleged that the stated misconduct reason concealed a different, politically motivated reason. The Tribunal therefore imposed an impermissible requirement when it demanded findings establishing precisely what misconduct the claimant had committed.

3. The error did not determine the separate fairness inquiry under section 98(4) of the Employment Rights Act 1996. The remaining questions, namely whether the employer had reasonable grounds for its belief following a reasonable investigation, required determination by a fact-finding Employment Tribunal. The EAT rejected the submission that unfairness on those questions was inevitable.

4. The liability issue was remitted for a complete rehearing before a freshly constituted Employment Tribunal. The original decision was totally flawed, making reconsideration by the same Tribunal inappropriate. The reinstatement order consequently fell away. Remedy, if required after remission, was to be decided afresh.

• Employment Appeal Tribunal: allowed the employer’s appeals, set aside the unfair-dismissal and reinstatement decisions, and remitted liability for rehearing before a fresh Employment Tribunal.
• Employment Tribunal: upheld the claimant’s unfair-dismissal complaint and ordered reinstatement in judgments promulgated on 20 May 2011; citation not stated in the judgment.