Yeung v Capstone Care Ltd

At a preliminary appeal hearing, it was reasonably arguable that a dismissal process was unfair where the manager deciding the internal appeal conducted further investigations and staff interviews but did not put their outcome to the employee. In assessing dismissal reasonableness, a tribunal must stand back and consider potentially exculpatory matters available at the relevant time, particularly where the consequences for the employee are serious. An employee's failure to engage in internal procedures may, however, properly attract criticism. A mistaken allocation of the burden of proof does not itself assist an employee where the employer succeeded despite the more onerous burden having been placed upon it.

The claimant appealed against an Employment Tribunal decision which found for the respondent on her unfair dismissal claim. The Employment Judge had concluded that the employer acted reasonably, but had placed the burden of proof on the employer.

At a preliminary hearing, the Employment Appeal Tribunal considered whether the proposed grounds had a reasonable prospect of success. The principal issue was whether the appeal officer's post-appeal investigation, conducted without reverting to the claimant with its results, could render the process unfair. The claimant also relied on the seriousness of the consequences in a regulated setting and on potentially exculpatory material.

1. The appeal was permitted to proceed to a full hearing on grounds 1 to 4. It was reasonably arguable that the appeal process was unfair. After the appeal meeting, the appeal officer conducted a full investigation and interviewed relevant staff, but did not return to the claimant with that material. That was capable of amounting to unfairness.

2. The Employment Judge had wrongly placed the burden of proof on the respondent. The judge had applied British Home Stores Ltd v Burchell without reflecting on the statutory change made by the Employment Act 1980, as discussed in West London Mental Health NHS Trust v Sarkar [2009] IRLR 512. The error did not, however, itself advance the claimant's position because the respondent had succeeded despite bearing that more onerous burden.

3. The claimant should expect criticism for failing to participate in the internal hearings. The Tribunal referred to Fuller v London Borough of Brent [2011] EWCA Civ 267 on that point.

4. Given the high stakes, it was arguable that the Employment Judge should have stood back and considered matters potentially exculpatory of the claimant, including the effect of the safeguarding inquiry, in accordance with the approach illustrated by A v B [2003] IRLR 405 and Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522. Ground 5 was not sent forward because it concerned material arising after the relevant date. The written reasons prevailed over any inconsistent ex tempore remarks.

• Employment Appeal Tribunal: at a preliminary hearing, directed that the claimant's appeal proceed to a full hearing on grounds 1 to 4.
• Employment Tribunal: found in favour of the respondent on the unfair dismissal claim. The Employment Judge was said to have allocated the burden of proof incorrectly.