Secretary Of State For Justice v Bennett

Under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the employer’s decision by the objective standard of the reasonable employer. In a conduct dismissal, it must review the employer’s reasons and decide whether the employer had reasonable grounds for its factual conclusions, conducted a reasonable investigation and procedure, and acted within the range of reasonable responses in dismissing.

The Tribunal must not substitute its own assessment of the evidence for that of the employer. The question is not whether the Tribunal itself can see evidence for the employer’s conclusion, but whether the employer could reasonably reach it. Similarly, the question is whether it was unreasonable not to treat the matter as one of training, not whether a reasonable employer might have done so.

Two prison officers were dismissed after a disciplinary hearing found that they had deliberately used unnecessary force on a prisoner, causing serious wrist injuries. Their employer treated the conduct as gross misconduct. Internal appeals were unsuccessful.

The Employment Tribunal rejected their claims based on protected disclosures and automatic unfair dismissal, but upheld their ordinary unfair-dismissal claims. It accepted that the injury was caused during restraint, but held that there was no evidence of deliberate force, criticised the disciplinary and appeal processes, and found dismissal outside the range of reasonable responses.

The Secretary of State appealed the ordinary unfair-dismissal ruling. The central issue was whether the Tribunal had correctly applied section 98(4) of the Employment Rights Act 1996 when assessing the employer’s factual conclusions and the sanction of dismissal.

1. Appeal allowed. The Employment Tribunal’s finding of ordinary unfair dismissal was set aside and that issue was remitted to a freshly constituted Tribunal. The unchallenged findings rejecting the protected-disclosure claims remained in force.

2. The Tribunal had misstated and misapplied section 98(4) of the Employment Rights Act 1996. Its task was to review the employer’s reasoning against the objective standard of the reasonable employer. In a conduct case, that required it to consider whether the employer had reasonably investigated, followed reasonable procedures, had reasonable grounds for its conclusions on the evidence, and acted reasonably in dismissing.

3. The Tribunal did not perform that task. The dismissing officer had given detailed reasons for finding that the force was deliberate, based on medical evidence, training evidence and the prisoner’s account. Instead of evaluating whether those were reasonable grounds for the officer’s conclusion, the Tribunal stated that it could not itself see evidence for deliberate force. That was an impermissible substitution of its own view.

4. The Tribunal also asked the wrong question when it said that a reasonable employer would have regarded the matter as a training issue. The relevant question was whether it was unreasonable for the employer not to do so. Its erroneous approach on these central matters meant that its liability decision could not stand.

5. Further findings, including that the dismissing officer had believed the officers went to the cell intending to injure the prisoner and that he had a pre-judged mindset, lacked an evidential basis. The Appeal Tribunal could not substitute its own conclusion because the outcome was not inevitable. The newly constituted Tribunal was therefore to determine ordinary unfair dismissal afresh; the consequential remedy and contributory-fault decisions also fell away.

• Employment Appeal Tribunal: Allowed the Secretary of State’s appeal against the ordinary unfair-dismissal decision and remitted that issue for a fresh hearing.
• Employment Tribunal (Newcastle): By judgment dated 12 September 2011, rejected the protected-disclosure and automatic-unfair-dismissal claims, but upheld ordinary unfair dismissal under section 98 of the Employment Rights Act 1996.