Franco Pizza Ltd (t/a Domino's Pizza) v Gould & Anor

In an unfair-dismissal claim confined to the reasonableness question under Employment Rights Act 1996, section 98(4), an Employment Tribunal must determine whether dismissal fell within the range of reasonable responses open to the employer. It must give intelligible reasons which connect its factual findings to that statutory question.

Criticism of the dismissing officer's demeanour, the disciplinary process, or the independence of an appeal does not establish unfairness unless the Tribunal explains why those matters made the decision to dismiss unreasonable. A Tribunal must not leave the appellate court to infer its reasoning from unconnected observations.

The employer dismissed its manager and assistant manager for gross misconduct after events at a pizza store involving non-staff entering the back-shop area, a police incident, and, in the assistant manager's case, an alleged failure to clock out. Internal appeals upheld the dismissals.

The Employment Tribunal upheld both unfair-dismissal claims by a decision dated 14 August 2012. The parties had agreed that the hearing would address only whether dismissal was reasonable in all the circumstances, leaving wages and remedy outstanding.

The employer appealed. The central question was whether the Tribunal had determined fairness under section 98(4) of the Employment Rights Act 1996 and had adequately explained its conclusion.

1. Appeal allowed. The Employment Tribunal erred in law. Its decision that both dismissals were unfair was set aside and the claims were remitted to a freshly constituted Tribunal.

2. The agreed issue was the fairness of dismissal under section 98(4) of the Employment Rights Act 1996. Although the parties had treated conduct as the established reason for dismissal, the Tribunal still had to decide whether, in all the circumstances, the employer acted reasonably in treating that conduct as sufficient to dismiss.

3. The Tribunal's judgment did not adequately perform that task. It recorded criticisms of Mr Wilson, who conducted the disciplinary hearings, including his demeanour and an asserted impression that his approach was predetermined. It also described the dismissal process as going through the motions and criticised the appeal as insufficiently independent. However, it did not identify findings of fact supporting the latter conclusions or explain how the criticisms established that either dismissal was outside the range of reasonable responses.

4. The Tribunal was entitled to assess the quality and demeanour of Mr Wilson's evidence. It nevertheless had to explain the relevance of those assessments to the statutory question. The judgment did not provide a clear connection between his attitude and the fairness of the dismissal decisions. Nor did it make clear which allegations were treated as reasons for dismissal, particularly where allegations concerning the second claimant appeared to alter during the disciplinary and appeal process.

5. Despite the age of the claim, fairness required a complete rehearing before a fresh Tribunal. The original Tribunal had formed views about the witnesses, but its judgment did not demonstrate application of the correct legal test through adequate reasons.

• Employment Appeal Tribunal: allowed the employer's appeal and remitted the unfair-dismissal claims to a fresh Employment Tribunal.
• Employment Tribunal: by a decision dated 14 August 2012, upheld both claims of unfair dismissal. Remedy and the wage claims were left over.