Cancer Research UK Ltd

In a conduct dismissal case, the tribunal does not determine whether the employee in fact committed the alleged misconduct. It determines whether the employer had reasonable grounds for its belief after carrying out an investigation that was reasonable in the circumstances under section 98(4) of the Employment Rights Act 1996.

Where the tribunal correctly directs itself and makes findings capable of supporting its conclusion, the Employment Appeal Tribunal will not substitute its assessment of the investigation or of dismissal. Its role is confined to errors of law.

The claimant, a charity van driver, was dismissed after a member of the public complained of dangerous driving. A previous judge-alone tribunal upheld his unfair-dismissal claim. The employer's appeal was allowed by consent and the matter was remitted for a fresh hearing.

A three-person Employment Tribunal dismissed the remitted claim. It held that the employer could reasonably identify the claimant as the likely driver, had conducted a reasonable investigation, and had acted within the range of reasonable responses. The claimant pursued a Rule 3 application after preliminary EAT opinions found no arguable error of law.

The central issue was whether the tribunal had erred in assessing the reasonableness of the employer's investigation and dismissal.

1. The Rule 3 application and the underlying appeal were dismissed. The three-person Employment Tribunal had made no error of law and its conclusion was not perverse.

2. Under section 98(4) of the Employment Rights Act 1996, the relevant inquiry was not whether the claimant had in fact driven the van dangerously. It was whether the employer had reasonable grounds for believing that he had committed the misconduct, following an investigation that was reasonable in the circumstances.

3. The tribunal was entitled to find that the employer reasonably concluded that the van was one of its vehicles and, by a process of elimination, that the claimant was the likely driver. It could also regard the claimant's earlier final written warning for similar driving conduct as relevant to that assessment.

4. The disciplinary hearing and the appeal involved consideration of the material advanced by the claimant and his representative. The appeal was a rehearing. The tribunal was entitled to find that the process, taken as a whole, was thorough and reasonable and that dismissal fell within the range of reasonable responses.

5. The EAT emphasised appellate restraint in unfair-dismissal cases. Once a tribunal has correctly directed itself and made adequate findings, an appeal lies only for error of law. The EAT must not decide the underlying facts afresh or substitute its own view of reasonableness.

• Employment Appeal Tribunal: The employer's earlier appeal against a judge-alone tribunal decision upholding the unfair-dismissal claim was allowed by consent, and the claim was remitted for a fresh hearing.
• Employment Tribunal: On remission, a three-person tribunal dismissed the unfair-dismissal claim in reasons sent on 3 November 2011.
• Employment Appeal Tribunal: The claimant's Rule 3 application and underlying appeal were dismissed in this judgment.