Koku v South London & Maudsley NHS Foundation Trust

In a misconduct dismissal case, an Employment Tribunal must assess the employer’s genuine belief, the reasonableness of its grounds and investigation, and the range of reasonable responses. It must not determine disputed underlying facts for itself and substitute those findings for the employer’s decision.

Reasons for rejecting a discrimination claim may be concise if, read fairly and as a whole, they enable the parties and an appellate court to understand the outcome. Earlier alleged discriminatory events may be evidential material, but where dismissal is not found to be race-related the tribunal need not separately decide whether those events formed a continuing act. The just and equitable extension of time is broad and appellate intervention requires legal or principled error.

The claimant, a healthcare assistant, was dismissed after disciplinary proceedings concerning alleged aggressive conduct. The Employment Tribunal upheld his complaints of unfair dismissal but dismissed his complaints of race discrimination.

The claimant appealed the dismissal of the race-discrimination claims, contending that the Tribunal’s reasons, its treatment of alleged continuing conduct, and its refusal to extend time were inadequate. The Trust cross-appealed the unfair-dismissal finding, contending that the Tribunal had substituted its own factual assessment for the employer’s assessment of the disciplinary material.

1. The claimant’s appeal was dismissed. The Tribunal’s brief reasons on race discrimination were adequate when its judgment was read as a whole. Its earlier findings recorded the primary facts and the employer’s explanations for the incidents relied on as evidential support. There was very little evidence supporting discrimination on grounds of colour, and the Tribunal’s conclusion that colour played no part in dismissal was clear.

2. The Tribunal did not have to make an express further finding on whether the earlier matters formed a continuing act. The earlier matters could only assist the claim if dismissal, the alleged end point, had been race-related. Its finding that dismissal was not on racial grounds made the rejection of that contention implicit.

3. The Tribunal’s refusal to extend time disclosed no error of law. The just and equitable jurisdiction is deliberately broad and is not necessarily constrained by the factors in section 33 of the Limitation Act 1980. An appellate tribunal may interfere with that discretionary decision only on identifying an error of law or principle which makes it plainly wrong.

4. The Trust’s cross-appeal was allowed. Although the Tribunal correctly directed itself by reference to Burchell, it then made its own findings on contentious facts, accepted the claimant’s account, and treated an employer’s allegedly erroneous belief as unreasonable. That was the prohibited substitution of the Tribunal’s assessment for the employer’s assessment, rather than an examination of the genuineness and reasonableness of the employer’s belief and investigation.

5. The Tribunal also acted unfairly by drawing an adverse inference about a human-resources witness and her motive where that issue had not been raised at the hearing and she had not given evidence. The unfair-dismissal claim was remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal — the claimant’s appeal against dismissal of the race-discrimination claims was dismissed. The Trust’s cross-appeal on unfair dismissal was allowed and that claim was remitted: [2013] UKEAT 0294_12_1503.
• Employment Tribunal — judgment sent to the parties on 8 March 2012. It dismissed the race-discrimination claims and found the dismissal unfair.