Kennedy v South Lanarkshire Council & Ors

In an unfair-dismissal appeal, the Employment Appeal Tribunal must decide whether the Employment Tribunal erred in law. It must not re-evaluate the evidence or substitute its own assessment for that of the employer or tribunal.

A defective initial disciplinary investigation may be cured by an appeal where the overall process gives the employee a fair opportunity to meet the material allegation and supplies a reasonable evidential basis for dismissal. An appeal will not cure a dismissal where the central evidential deficiency remains unresolved.

Apparent bias depends on whether a fair-minded and informed observer would see a real possibility of bias. A judge’s family connection with a firm representing a party does not itself require recusal where the relative had no involvement in the case and there is no relevant interest in its outcome.

Three local-authority employees were dismissed for gross misconduct arising from arrangements under which vehicles were moved between depots. The Employment Tribunal held that the dismissals of Mr Burns and Mr Kennedy were fair, because deficiencies in the initial process had been cured on appeal. It held that Mr Martin had been unfairly dismissed because the evidence did not reasonably implicate him in the alleged misuse.

The Council appealed the finding concerning Mr Martin. Mr Burns and Mr Kennedy appealed the findings concerning their dismissals. The Council also alleged apparent bias because the Employment Judge’s daughter was a partner in the firm representing Mr Martin, and improper conduct arising from an interruption of a witness.

The central questions were whether the Tribunal had substituted its own view for that of the employer, reached perverse conclusions, or inadequately explained its conclusions.

1. All three appeals were refused. The Employment Tribunal had correctly directed itself as to its function and had not substituted its own assessment for that of the employer. Its reasons were lengthy and convoluted, but they disclosed its examination of the employer’s reasoning against the evidence available in the disciplinary process.

2. The Tribunal was entitled to find that the initial investigations concerning Mr Burns and Mr Kennedy were imperfect, but that the appeal process cured those defects. The appeal considered evidence, including CCTV material, which entitled the employer reasonably to conclude that Mr Kennedy had claimed payment while travelling to work and that Mr Burns had connived in that conduct. The Tribunal was entitled to treat the resulting destruction of trust and confidence as justifying dismissal.

3. The Tribunal was also entitled to find that the employer lacked sufficient material reasonably to implicate Mr Martin in the alleged misuse. The evidence attributed to Mr Fitzgerald did not reasonably establish that Mr Martin knew of or authorised improper travel. The appeal was a review rather than a full rehearing and did not cure that unresolved central deficiency. The finding that Mr Martin had been unfairly dismissed therefore stood.

4. Applying the objective apparent-bias test in Porter v McGill [2002] 2 AC 357, the family connection did not require recusal. The Employment Judge’s daughter had no involvement in the case and the connection did not create a relevant interest in its outcome. Disclosure of such a connection might be best practice, but recusal required something further, such as the relative’s involvement in the proceedings.

5. The improper-conduct ground also failed. The Judge’s questions interrupted a witness but did not prevent her from giving evidence. Re-examination could have addressed any genuine restriction. No error of law was shown.

• Employment Appeal Tribunal: all appeals from the Employment Tribunal were refused.
• Employment Tribunal: held that Mr Burns and Mr Kennedy had been fairly dismissed, but that Mr Martin had been unfairly dismissed.