Scott v Northumbria Probation Board

In assessing the fairness of a dismissal, an Employment Tribunal must assess the whole disciplinary process under section 98(4) of the Employment Rights Act 1996. It should not decide the issue by classifying an internal appeal as a review or a rehearing.

Where an appeal panel excludes a significant basis of the original dismissal but nevertheless upholds it, the appeal panel effectively becomes the principal decision-maker. The Tribunal must then examine with particular care the evidence remaining, the thoroughness of the appeal, and the panel's decision-making. Bare assertions that the remaining evidence justified gross misconduct do not demonstrate that the overall process was fair.

The claimant, a probation officer, was summarily dismissed for gross misconduct after submitting photocopied receipts for meal expenses and making unsupported parking claims. The disciplinary officer relied in part on evidence that the restaurant from which meals were said to have been bought was closed on Tuesdays.

On appeal, the employer's panel found insufficient evidence to uphold the parking allegation. It also treated the competing evidence about Tuesday opening as neutral, but upheld dismissal on the basis that the meal receipts had been falsified. The Employment Tribunal dismissed the claimant's unfair-dismissal claim, holding that the appeal was fair and that the remaining evidence could support gross misconduct.

The central issue was whether the Tribunal had properly evaluated the fairness of the internal appeal after it had removed an important factual basis of the original dismissal.

1. Appeal allowed. The Employment Tribunal's finding that the claimant had not been unfairly dismissed was quashed and the case was remitted to the same Tribunal for reconsideration.

2. The approach in Taylor v OCS Group Ltd, [2006] EWCA Civ 702, applied by analogy. The governing question under section 98(4) of the Employment Rights Act 1996 was whether the disciplinary process as a whole was fair. It was irrelevant to resolve whether the internal appeal was technically a review or a rehearing.

3. The original disciplinary decision was not itself criticised. However, it had relied materially on the conclusion that the restaurant was closed on Tuesdays. The appeal panel treated that issue as unresolved after receiving further evidence, while nevertheless affirming dismissal. It therefore had to decide for itself whether the remaining evidence established misconduct and justified dismissal.

4. The Tribunal did not show that it had examined that appeal decision with the necessary care. Its findings did not identify the remaining evidence or explain the nature and extent of the panel's evaluation of it. Its statements that the panel could rely on the remaining evidence were bare assertions and did not establish the fairness of the overall process.

5. The appropriate and proportionate course was remission to the same Tribunal. The earlier factual findings and evidence concerning the original disciplinary hearing remained undisturbed, but the Tribunal had to reconsider the internal appeal, receiving further evidence if necessary.

• Employment Appeal Tribunal: Allowed the claimant's appeal, quashed the finding that the dismissal was fair, and remitted the matter to the same Employment Tribunal.

• Employment Tribunal, Newcastle upon Tyne: On 6 and 7 July 2010, dismissed the claimant's unfair-dismissal claim. Reserved reasons were sent on 20 September 2010.