Network Rail Infrastructure Ltd v Mockler

In a misconduct dismissal, an Employment Tribunal must determine whether the employer had a proper basis for its belief in misconduct following a reasonable investigation, and then decide whether dismissal fell within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. The Tribunal must not substitute its own view for that of the employer, but it may assess the seriousness of the established breach, comparative treatment and all the circumstances when deciding whether dismissal was reasonable.

A finding that an employee contributed to dismissal by blameworthy conduct must be supported by reasons. If the reasons do not reveal the basis for a percentage reduction, the issue should be remitted for a fresh reasoned assessment.

The claimant, a long-serving track worker, was summarily dismissed after being found near a railway track without a hard hat, without a valid track-safety certificate and without an established safe system of work. He brought an unfair dismissal claim.

The Employment Tribunal held that the employer had conducted a reasonable investigation and procedure, but that dismissal was outside the range of reasonable responses. It reduced compensation by 50% for contributory fault, without explaining that percentage.

The employer appealed against the unfair-dismissal finding and the contribution decision. The central questions were whether the Tribunal had impermissibly substituted its own view on sanction, and whether its contribution finding was adequately reasoned.

1. The appeal was dismissed on liability. Although the Employment Tribunal had not cited the legislation or authorities, its reasoning showed that it had applied the misconduct framework in BHS v Burchell [1978] IRLR 379. It accepted the employer's reason, reasonable investigation and reasonable procedure, before deciding whether dismissal was within the range of reasonable responses.
2. The Tribunal did not substitute its own assessment for that of the employer. It was entitled to assess, when considering sanction, the extent and circumstances of the safety breaches, the claimant's lack of knowledge that his certificate had been suspended, the limited risk found, whether he was properly a lone worker, his unblemished service, and the different treatment of the supervisor.
3. Comparative treatment was relevant to the assessment required by section 98(4) of the Employment Rights Act 1996. The statutory reference to equity and the substantial merits permitted the Tribunal to treat the case as one of inconsistent treatment. The EAT held that there was no material distinction between an unreasonable and an irrational dismissal in this context.
4. The appeal was allowed in part on contribution. A percentage reduction under section 123 required reasons identifying the blameworthy conduct and explaining the percentage. The Tribunal's bare 50% finding could not stand. The contribution issue was remitted to the same Tribunal for reasons and a fresh assessment; the underlying finding that there had been contributory conduct remained intact.

• Employment Appeal Tribunal: Allowed the employer's appeal only as to the unreasoned 50% contribution finding, and remitted that issue to the same Employment Tribunal.
• Employment Tribunal: Found the claimant unfairly dismissed, while reducing compensation by 50% for contributory fault.