Leeks v St George's Healthcare NHS Trust

In an unfair-dismissal case, the fairness of an employer’s investigation is assessed by reference to the material available to the employer and to whether it carried out as much investigation as was reasonable. A tribunal may refuse late-disclosed covert recordings of meetings where the decision-makers did not know of them and the employee had accepted that no further investigation was required.

A reasons challenge fails where the tribunal’s reasons enable the parties to understand why it reached its decision. The tribunal must not substitute its own view for the employer’s assessment where the employer could reasonably reach its conclusion on the evidence before it.

The claimant appealed against the Employment Tribunal’s dismissal of her ordinary unfair-dismissal claim. Her whistleblowing and holiday-pay claims had been withdrawn.

The respondent dismissed her for unauthorised access to, copying and passing on the HR files of two employees. During the disciplinary process, the claimant and her trade-union representative accepted that no further investigation was reasonable.

The appeal principally challenged the Tribunal’s refusal to consider transcripts of covert recordings made by the claimant at investigation and disciplinary meetings. It also raised a challenge to the adequacy of the Tribunal’s reasons and to its conclusion that the dismissal was fair.

1. Appeal dismissed. The Employment Tribunal made no error in dismissing the unfair-dismissal claim.

2. Under Employment Rights Act 1996, section 98, conduct was an undisputed potentially fair reason. The relevant question under section 98(4) was whether the respondent acted reasonably in treating the conduct as sufficient reason for dismissal. The Tribunal had directed itself by reference to [1978] IRLR 379. Although its self-direction arguably referred to a burden of proof which had been removed by the Employment Act 1980, the respondent had in any event discharged the requirement to investigate as much as was reasonable.

3. The claimant’s representative had accepted in the internal process that no further investigation was necessary. The Tribunal was therefore entitled to avoid substituting its own assessment for that of the respondent.

4. The Tribunal’s stated reason for disregarding the recordings, namely that the respondent did not know they existed, was not alone a complete answer to admissibility. Nevertheless, the recordings were not material available to the employer when it dismissed the claimant. Applying the approach in [2009] IRLR 563, and in light of the concession on investigation, the Tribunal acted within its discretion in refusing to admit them. The recordings did not assist the claimant in any event.

5. The employer could reasonably conclude that the claimant had handed over the two HR files and could fairly dismiss her for that conduct. The reasons challenge under [1987] IRLR 250 also failed: the Tribunal’s reasons were clear and enabled the parties to understand the decision.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal: [2012] UKEAT 0413_12_2210.
• Employment Tribunal, London South: dismissed the claimant’s ordinary unfair-dismissal claim in a judgment sent to the parties on 6 June 2012.