Metroline Travel Ltd v Lim

In a conduct-dismissal case, an Employment Tribunal must apply the Burchell requirements and determine whether dismissal fell within the range of reasonable responses open to the employer. The Employment Appeal Tribunal must not substitute its own assessment for that of the Tribunal under the guise of perversity.

A Tribunal may find dismissal unfair where the employer lacked reasonable grounds, founded on a reasonable investigation, for material allegations and where the ultimate sanction was outside that range. Exposure for the purposes of section 66 of the Sexual Offences Act 2003 requires the necessary intent; exposure alone is insufficient.

A bus driver was dismissed for gross misconduct after defecating outside his employer's locked depot building. He had a medical history of irritable bowel syndrome, of which the employer was unaware. The employer alleged indecent exposure, breach of health and safety requirements and soiling of company property.

The Employment Judge at Watford upheld his unfair-dismissal complaint. She found deficiencies in the employer's grounds and investigation for the first two allegations, and concluded that dismissal fell outside the range of reasonable responses. The employer appealed, alleging misapplication of the Burchell test, substitution of the Tribunal's view, and perversity.

1. Appeal dismissed. The Employment Judge made no error of law in upholding the unfair-dismissal complaint.

2. The Judge correctly applied the Burchell test. She was entitled to find that the employer had no reasonable grounds, based on a reasonable investigation, for believing that the employee was guilty of indecent exposure. The conduct did not meet section 66 of the Sexual Offences Act 2003, because that offence requires the necessary intent as well as exposure.

3. The Judge was also entitled to consider the adequacy of the investigation into the health-and-safety allegation. Although she made a qualified finding that there were reasonable grounds for that allegation, she found that no proper investigation had been made. The Court of Appeal authorities concerning a heightened investigation where dismissal may prevent work in the chosen field did not show that the Judge had imposed such a test here.

4. The Judge did not substitute her own view for that of the employer. Her factual findings and her consideration of the employer's disciplinary procedure were permissible steps in deciding whether dismissal for the misconduct found was within the range of reasonable responses. Applying the appellate guidance in Bowater [2011] IRLR 331 (CA), Graham v DWP [2012] IRLR 759 and Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23 (CA), the EAT could not displace that permissible evaluative conclusion merely because another view was possible.

5. The Tribunal took account of all relevant factors. Its conclusion that dismissal was outside the range of reasonable responses was not perverse. The finding of one-third contributory conduct at remedy stage was consistent with the conclusion that the dismissal was unfair.

• Employment Appeal Tribunal: the employer's appeal against the unfair-dismissal decision was dismissed.
• Employment Tribunal, Watford: by a judgment with reasons dated 13 December 2012, the Employment Judge upheld the employee's unfair-dismissal complaint. At the subsequent remedy hearing, she found one-third contributory conduct.