Kennedy v South Lanarkshire Council & Ors

In an unfair-dismissal case, an Employment Tribunal must assess whether the employer’s decision fell within the range of reasonable responses. It must not substitute its own assessment of the evidence.

Defects in an initial disciplinary investigation may be cured by an appeal when the overall process fairly considers sufficient material and gives the employee a fair opportunity to answer the allegation. Conversely, dismissal is unfair where the employer lacks sufficient material reasonably to implicate the employee and the appeal does not cure that defect.

A family connection between an Employment Judge and a partner in a party’s legal firm does not, without more, require recusal. The objective test remains whether a fair-minded and informed observer would perceive a real possibility of bias.

Three local-authority employees were dismissed for gross misconduct arising from arrangements under which Council vehicles were moved between depots. The Employment Tribunal held that the dismissals of Mr Burns and Mr Kennedy were fair, but that Mr Martin’s dismissal was unfair.

All three decisions were appealed. The Council challenged the finding concerning Mr Martin and also alleged apparent bias and improper conduct by the Employment Judge. Mr Burns and Mr Kennedy challenged the conclusions that their dismissals were fair, including the Tribunal’s finding that the internal appeal had cured defects in the original process.

The central issues were whether the Employment Tribunal had impermissibly substituted its own view for that of the employer, whether the disciplinary and appeal processes supported the respective conclusions, and whether the alleged judicial conduct required the decision to be set aside.

1. All appeals were refused. The Employment Appeal Tribunal upheld the Employment Tribunal’s conclusions that the dismissals of Mr Burns and Mr Kennedy were fair and that Mr Martin’s dismissal was unfair.

2. The Employment Tribunal had correctly directed itself that it must not substitute its own view for that of the employer. Its function was to decide whether the employer’s decisions fell within the range of reasonable decisions open to a reasonable employer. Although the reasons were lengthy and convoluted, they showed that the Tribunal had examined and tested the employer’s reasoning against the evidence.

3. The Tribunal was entitled to find that the original investigation and first-instance disciplinary decisions concerning Mr Burns and Mr Kennedy had defects. It was nevertheless entitled to hold that the appeal cured those defects. The appeal considered the spreadsheet and CCTV evidence, and provided sufficient material from which the employer could reasonably conclude that Mr Kennedy had improperly claimed payment while travelling to work and that Mr Burns had connived in that conduct. The resulting loss of trust entitled the employer to dismiss them.

4. In Mr Martin’s case, the Tribunal was entitled to find that the evidence did not sufficiently implicate him in the misuse of vehicles. The employer had not adequately clarified the evidence said to connect him with the conduct. The appeal was a review rather than a full rehearing and did not cure that central defect. His dismissal was therefore unfair.

5. The apparent-bias ground failed. Applying the objective approach in [2002] 2 AC 357, the family relationship between the Employment Judge and a partner in the firm representing Mr Martin did not create the requisite interest or real possibility of bias. The EAT observed that disclosure of such a connection might be best practice, but recusal would require something more, such as the family member’s involvement in the case.

6. The improper-conduct ground also failed. The Employment Judge had interrupted a witness to clarify her evidence but had not prevented her from giving evidence. If a material difficulty had arisen, re-examination should have been sought.

• Employment Appeal Tribunal: All appeals from the Employment Tribunal were refused.
• Employment Tribunal: Held that Mr Burns and Mr Kennedy had not been unfairly dismissed, and that Mr Martin had been unfairly dismissed. The lower decision’s citation was not stated in the judgment.