South Lanarkshire Council v Burns

In a misconduct dismissal case, the Employment Tribunal must assess the employer’s decision without substituting its own view. It must decide whether the employer had material capable of supporting its conclusions and whether dismissal fell within the range of reasonable responses.

An inadequate initial investigation may be cured by a fair appeal when the appeal considers further material, gives the employee a fair opportunity to answer the case, and makes the overall process fair. An appeal cannot cure a dismissal where the central evidential deficiency remains unresolved.

Apparent bias is assessed objectively. A family connection between an Employment Judge and a partner in a party’s solicitors’ firm does not require recusal without a further connection, such as that family member’s involvement in the case.

Three local-authority employees were dismissed for alleged gross misconduct connected with the use of council vehicles between depots. The Employment Tribunal held that the dismissals of Mr Burns and Mr Kennedy were fair, because deficiencies in the initial investigation had been cured on appeal. It held that Mr Martin’s dismissal was unfair, because the evidence did not sufficiently implicate him and the appeal did not cure that defect.

The local authority appealed in Mr Martin’s case. Mr Burns and Mr Kennedy appealed in their own cases. The local authority also alleged apparent bias because the Employment Judge’s daughter was a partner in the firm representing Mr Martin, and alleged improper conduct in the questioning of a witness.

The central issues were whether the Employment Tribunal had substituted its own view for that of the employer, made perverse findings, or erred in its assessment of the overall disciplinary process.

1. All appeals were dismissed. The Employment Tribunal had not erred in law in finding the dismissals of Mr Burns and Mr Kennedy fair, and Mr Martin’s dismissal unfair.

2. The Employment Tribunal had correctly recognised that it must not substitute its own assessment for that of the employer. Its task was to decide whether the employer’s conclusions and dismissals fell within the range of reasonable decisions open to a reasonable employer. Although the Tribunal’s reasons were lengthy and complex, they showed that it had examined the employer’s reasoning against the evidence.

3. The Tribunal was entitled to find that the initial investigation into Mr Burns and Mr Kennedy had been deficient. It was nevertheless entitled to find that the appeal process cured those defects. The appeal considered the spreadsheet and CCTV evidence, and there was material from which the employer could reasonably conclude that Mr Kennedy had been paid while travelling to work and that Mr Burns had connived in that conduct. Both had a fair opportunity to answer the allegation. The resulting loss of trust entitled the employer to dismiss them.

4. The Tribunal was also entitled to find that the evidence against Mr Martin was too vague. In particular, the employer had failed to clarify whom Mr Fitzgerald meant by “line managers”. No reasonable employer would have failed to make that enquiry before treating the statement as implicating Mr Martin. The appeal was a review rather than a rehearing and did not cure the unresolved failure to establish the reason for his dismissal.

5. The apparent-bias ground failed. Applying the objective test, the Employment Judge’s family connection with a partner in Mr Martin’s solicitors’ firm did not create the requisite interest or real possibility of bias. Disclosure of such a connection might be best practice, but recusal required something further, such as the offspring’s involvement in the case.

6. The improper-conduct ground also failed. The Employment Judge interrupted a witness to clarify her evidence but did not prevent her from giving evidence. Any genuine difficulty could have been addressed by re-examination.

• Employment Appeal Tribunal: Appeals from the Employment Tribunal were dismissed. The Tribunal’s decisions that Mr Burns and Mr Kennedy had been fairly dismissed, and that Mr Martin had been unfairly dismissed, were upheld.
• Employment Tribunal: Held that the dismissals of Mr Burns and Mr Kennedy were fair after considering the overall disciplinary and appeal process. Held that Mr Martin had been unfairly dismissed. No citation is stated in the judgment.