Camden & Islington Foundation Trust v Boafo

In an unfair-dismissal conduct case, an Employment Tribunal must decide whether dismissal, as well as the procedure and the employer’s belief, fell within the range of reasonable responses. Where advanced, long unblemished service may be material to that assessment.

For wrongful dismissal, the Tribunal must make clear and consistent findings on whether the employee’s actual conduct amounted to a repudiatory breach entitling summary dismissal. An appellate tribunal should remit where the reasons contain an unresolved contradiction on that issue rather than resolve it itself.

The employee, a nursing assistant with more than 18 years’ service, was summarily dismissed after managers found her apparently asleep during a night shift on a ward caring for vulnerable patients.

The London Central Employment Tribunal held that the dismissal was fair but wrongful. It awarded 12 weeks’ notice pay. The employer appealed against the wrongful-dismissal finding and the employee cross-appealed against the dismissal of her unfair-dismissal claim.

The central issues were whether the Tribunal’s findings on repudiatory breach were internally consistent and whether it had assessed dismissal, including the employee’s service record, against the range of reasonable responses.

1. Appeal and cross-appeal allowed. The claims were remitted to the same Employment Tribunal if possible. Its existing factual findings were to remain binding.

2. On wrongful dismissal, the Tribunal had correctly directed itself to ask whether the conduct amounted to a repudiatory breach allowing summary dismissal. Deliberateness was relevant, although a deliberate breach was not essential because serious or gross negligence could also be repudiatory.

   Its conclusion that the employer was entitled to dismiss for gross misconduct was, however, difficult to reconcile with its later findings that the employee had only momentarily fallen asleep without intending to sleep, and that those findings did not justify summary dismissal. The EAT could not safely explain away that contradiction. The issue had to be reconsidered, including the seriousness of sleeping while responsible for vulnerable adults. The relevance of an unblemished record to wrongful dismissal was left open for submissions.

3. On unfair dismissal, there was no challenge to the investigation, procedure, or the employer’s honest and reasonable belief. But the Tribunal had not expressly determined whether instant dismissal fell within the range of reasonable responses. It had also failed to state whether the employer considered the employee’s 18 years of unblemished service. Those matters could be material to the reasonableness of the sanction and required determination by the Tribunal.

4. The employer’s perversity challenge to the finding that the employee may simply have dropped off to sleep was rejected. There was evidential material capable of supporting that finding.

• Employment Appeal Tribunal: allowed the employer’s appeal on wrongful dismissal and the employee’s cross-appeal on unfair dismissal, and remitted both issues.
• London Central Employment Tribunal: on 28 July 2011, dismissed the unfair-dismissal claim but upheld the wrongful-dismissal claim and awarded 12 weeks’ notice pay.