Vincent (t/a Shield Security Service) v Hinder

In a misconduct dismissal, the question under section 98(4) of the Employment Rights Act 1996 remains whether the employer acted reasonably in treating the misconduct as sufficient reason to dismiss, assessed according to equity and the substantial merits.

An Employment Tribunal does not necessarily substitute its own view merely because it finds that the employer failed to consider mitigating circumstances or any sanction short of dismissal. Where that finding is open on the evidence, the Tribunal may conclude that dismissal fell outside the band of reasonable responses.

The claimant, a security guard with a good employment record, was summarily dismissed after the employer concluded that he had smoked inside client premises. The employer accepted that the claimant had not neglected his duties but treated the smoking allegation as serious or gross misconduct.

The Employment Tribunal at Cardiff held that the dismissal was unfair. It found that the employer had not considered mitigating circumstances, the claimant's record, or an alternative sanction. The employer appealed, contending that the Tribunal had substituted its own view for that of the employer.

The central issue was whether the Tribunal's conclusion that dismissal was outside the band of reasonable responses disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself on the band of reasonable responses. Its conclusion that dismissal was unfair did not disclose a substitution of its own judgment for the employer's.

2. The Tribunal was entitled to assess the factual circumstances as possible mitigation. It had not diminished the seriousness of the misconduct by describing it as a misdemeanour, nor had it wrongly determined for itself whether the claimant had smoked. It properly kept separate the employer's reasonable belief in misconduct and the Tribunal's assessment of the reasonableness of dismissal.

3. The statutory question under section 98(4)(a) and (b) of the Employment Rights Act 1996 was whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal, determined in accordance with equity and the substantial merits. Guidance from the authorities did not displace that statutory inquiry.

4. On the facts found, the employer had applied dismissal without considering any alternative sanction for an employee with a good record and had ignored mitigating circumstances. The Tribunal was entitled to find that this was not an action within the band of reasonable responses. Although the Appeal Tribunal judge might have reached a different conclusion, the finding was one of fact and involved no misdirection under section 98(4).

• Employment Appeal Tribunal: appeal dismissed; the finding that the claimant had been unfairly dismissed was upheld.
• Employment Tribunal, Cardiff: Employment Judge Povey held on 8 October 2012, with reasons sent on 14 December 2012, that the claimant had been unfairly dismissed. A later remedies judgment was not appealed in these proceedings.