Burns v South Lanarkshire Council & Ors

In an unfair-dismissal appeal, the Employment Appeal Tribunal must decide whether the Employment Tribunal made an error of law. It must not substitute its own assessment for a permissible factual and evaluative judgment of the Employment Tribunal.

An initially defective disciplinary investigation may be cured by a fair appeal when the appeal process supplies material enabling the employer reasonably to uphold dismissal. It cannot cure a dismissal where the employer lacked a sufficient evidential basis for believing that the employee was implicated in the alleged misconduct.

For apparent bias, the question is whether a fair-minded and informed observer would see a real possibility of bias. A judge's family connection with a representative's firm does not, without more such as involvement in the case or an interest in its outcome, require recusal.

Three local-authority employees were dismissed for gross misconduct arising from alleged misuse of council vehicles for travel between depots. The Employment Tribunal held that the dismissals of Mr Burns and Mr Kennedy were fair, because an appeal process cured defects in the original investigation. It held that Mr Martin's dismissal was unfair because the evidence did not reasonably establish his complicity.

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, arising from the Employment Judge's daughter being a partner in the firm representing Mr Martin, and improper conduct during a witness's evidence.

The central issues were whether the Employment Tribunal had substituted its own view for that of the employer, and whether its findings on the fairness of the three dismissals disclosed an error of law.

1. All appeals were refused. The Employment Tribunal had correctly directed itself that it must not substitute its own view for that of the employer. Although its reasons were lengthy and convoluted, they disclosed no error of law.

2. The Tribunal was entitled to find that the original investigation and dismissal decisions concerning Mr Burns and Mr Kennedy were imperfect. It was nevertheless entitled to find that the appeal process considered further material, including the spreadsheet and CCTV evidence, and gave a sufficient basis for the employer reasonably to conclude that Mr Kennedy had improperly claimed paid time while travelling to work and that Mr Burns was complicit. The resulting loss of trust entitled the employer to dismiss them.

3. The Tribunal was also entitled to find that the evidence concerning Mr Martin was too vague to establish that he knew of, or participated in, unauthorised vehicle use. The employer had not made the further enquiries necessary to establish whom the reference to “line managers” implicated. The appeal did not cure that central evidential defect. The finding that Mr Martin had been unfairly dismissed therefore stood.

4. Applying the objective apparent-bias test in [2002] 2 AC 357, the family connection did not create a real possibility of bias. There was no relevant interest in the outcome, no involvement by the Employment Judge's daughter, and the decision concerning Mr Martin was unanimous. Disclosure of such a connection might be best practice, but recusal was not required on these facts.

5. The Employment Judge interrupted a witness to clarify her evidence but did not prevent her from giving evidence. In the absence of a real restriction on the evidence, and where re-examination could have addressed any difficulty, the allegation of improper conduct failed.

• Employment Appeal Tribunal: All appeals from the Employment Tribunal were refused. The Tribunal's findings that Mr Burns and Mr Kennedy were fairly dismissed, and that Mr Martin was unfairly dismissed, were upheld.
• Employment Tribunal: Held that Mr Burns and Mr Kennedy had not been unfairly dismissed, but that Mr Martin had been unfairly dismissed. No citation is stated in the judgment.