Boardman v Nugent Care Society & Anor

An Employment Tribunal's credibility findings cannot stand where it wrongly treats central, disputed facts as undisputed and thereby treats a claimant's continued denial as an admission. Such errors may vitiate both the statutory assessment of unfair dismissal under section 98(4) of the Employment Rights Act 1996 and a finding of wrongful dismissal.

In a misconduct case, a reasonable investigation does not invariably require the employer to interview every potential witness. The question remains whether the investigation was reasonable in all the circumstances. An omission of those words when restating the Burchell test is not a misdirection where the tribunal has correctly stated and applied the test.

The appellant, a long-serving mathematics teacher at an independent school for pupils with behavioural and emotional difficulties, was summarily dismissed for gross misconduct after an allegation that she assaulted a pupil during a detention. She denied assaulting or manhandling the pupil.

An earlier Employment Tribunal had upheld her unfair dismissal complaint, but its decision was set aside and the matter remitted for a fresh hearing. The fresh Tribunal, by a majority, dismissed her claims for unfair and wrongful dismissal. It preferred the evidence of the teaching assistant who made the allegation and found that the employer had conducted a reasonable investigation.

The appeal concerned whether the Tribunal had misunderstood the facts in dispute, approached credibility lawfully, adequately considered the investigation, and correctly applied section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed. The majority Tribunal's decisions on unfair and wrongful dismissal could not stand. The matter was remitted for a rehearing before a freshly constituted Tribunal.

2. The critical issue was whether the appellant had assaulted or manhandled the pupil. She had consistently denied doing so. The Tribunal nevertheless described as undisputed that there had been manhandling and that she had permitted the teaching assistant to leave the room. Both matters were disputed. It also wrongly treated the appellant's comments about a “small throw” as an effective confession, when they could only properly be understood as an argument that dismissal would have been disproportionate even if that allegation were established.

3. Those factual errors were serious and unsustainable. They infected the Tribunal's assessment of the appellant's credibility, which was central because the accounts of the appellant and the teaching assistant conflicted. They necessarily affected both the finding that the employer had reasonable grounds for its belief and the finding, for wrongful-dismissal purposes, that the assault occurred as alleged.

4. The Tribunal had been entitled to regard the absence from the appellant's initial account of a fall to the floor as relevant to credibility. However, that permissible point did not cure the wider errors.

5. Applying the misconduct test in British Home Stores v Burchell [1978] IRLR 379, the EAT held that the employer's failure to obtain accounts from two other pupils or further clarification from the alleged victim did not, of itself, place the investigation outside the range of reasonable responses. The Tribunal had not misdirected itself under section 98(4) of the Employment Rights Act 1996 merely by omitting, in one passage, the words “in all the circumstances”, since it had correctly set out the applicable test.

• Employment Appeal Tribunal: Allowed the employee's appeal and remitted the claims to a fresh Tribunal for rehearing.
• Employment Tribunal, Liverpool: In the decision appealed from, the majority dismissed the claims for unfair and wrongful dismissal; the minority would have upheld both claims.
• Earlier Employment Appeal Tribunal: Allowed the employer's appeal from an earlier Tribunal decision which had upheld the unfair dismissal complaint, and remitted the case for a fresh hearing.