British Telecommunications Plc v Daniels

In a misconduct dismissal, the employer bears the burden under section 98(1) of showing the reason for dismissal, but not the burden of proving the reasonable-grounds and investigation elements commonly associated with Burchell. Fairness under section 98(4) remains an objective assessment of the employer’s response in all the circumstances.

An Employment Tribunal may find dismissal unfair where an employer with substantial resources fails to obtain occupational-health advice despite material medical and union information indicating that the employee’s mental health may explain conduct said to be dishonest. An appellate tribunal must not substitute its own view of the reasonable employer’s response for that of a properly directed Employment Tribunal.

The claimant, a long-serving customer service engineer, was dismissed for gross misconduct involving unauthorised use of a company vehicle, misuse of a fuel card, and abuse of the stores-ordering process.

The Employment Tribunal found that the employer genuinely believed the misconduct allegations, had reasonable grounds for that belief, and had conducted a reasonable investigation. It nevertheless held the dismissal unfair because the employer had not acted on medical and union material indicating a significant history of mental-health difficulties and suggesting an occupational-health report before proceeding.

The employer appealed, contending that the Tribunal had substituted its view for that of the dismissing managers and had wrongly treated further medical investigation as necessary. The central issue was whether the Tribunal’s conclusion under section 98(4) of the Employment Rights Act 1996 disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal’s conclusion that the dismissal was unfair was open to it and disclosed no error of law.

2. The Tribunal had made an erroneous self-direction by treating the employer as bearing the burden of proving reasonable grounds and a reasonable investigation under British Home Stores v Burchell. That burden had ceased following the Employment Act 1980. The error was immaterial because, read as a whole, the Tribunal did not require the employer to prove those matters and otherwise correctly applied the Burchell approach.

3. The Tribunal was entitled to find that the employer had genuinely believed the claimant guilty, on reasonable grounds after a reasonable investigation. Those findings did not prevent it from separately deciding, under section 98(4) of the Employment Rights Act 1996, that dismissal was outside the range of reasonable responses.

4. There was material before the dismissing managers from the claimant’s GP and union representatives which raised a substantial question about the claimant’s mental-health history and its possible bearing on the apparently irrational conduct. For an employer of the respondent’s size and resources, the failure to seek an occupational-health report before dismissal could properly render the dismissal unfair.

5. The Employment Appeal Tribunal was bound to avoid substituting its own assessment for that of the Employment Tribunal. The criticism of the Tribunal’s reading of the GP’s suggestion was an impermissibly pernickety analysis of a judgment which had correctly identified the relevant material and reached a permissible evaluative conclusion.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s finding of unfair dismissal was upheld.
• Employment Tribunal, Bury St Edmunds: judgment sent to the parties on 18 July 2011. The claimant’s unfair-dismissal claim succeeded. A later remedy judgment awarded £21,425.92 after a 65 per cent reduction for contributory conduct; that remedy decision was not appealed.