JJ Food Service Ltd v Kefil

An Employment Tribunal does not adopt an impermissible substitution approach merely because it concludes that dismissal was outside the range of reasonable responses. The question under section 98(4) is whether the employer acted reasonably in treating the established misconduct as sufficient reason for dismissal, not what the tribunal itself would have done.

A perversity appeal succeeds only where the tribunal's conclusion is wholly impermissible. It was open to a tribunal to find dismissal unfair where a manager had behaved over-authoritatively but had received no warning that repetition could lead to dismissal and no management training to address the perceived deficiencies.

The claimant had worked for the employer for 14 years and had held managerial roles. Following a staff complaint concerning his treatment of junior employees, the employer found that he had abused his managerial position, created an intimidating environment and treated staff unfairly. It treated the conduct as gross misconduct and offered demotion; the claimant's internal appeal failed.

The Employment Tribunal at Watford upheld complaints of unfair and wrongful dismissal. It accepted that the employer genuinely believed misconduct had occurred, had reasonable grounds for that belief and had conducted a reasonable investigation. It nevertheless held that dismissal fell outside the range of reasonable responses because the claimant had not been formally warned that continued conduct could lead to dismissal and had not been given management training.

The employer appealed the unfair-dismissal finding, alleging substitution and perversity.

1. Appeal dismissed. The Employment Tribunal had not substituted its own view for that of the employer. Under section 98(4) of the Employment Rights Act 1996, the tribunal's task is to decide whether the employer reasonably treated the established reason as sufficient for dismissal. A substitution error requires an indication, read from the decision as a whole, that the tribunal instead decided what it would itself have done on the underlying facts.

2. The Tribunal's description of the misconduct as the claimant's manner of acting as a manager was a fair synopsis of its findings. It had identified the employer's stated reason for dismissal and had directed itself to the range of reasonable responses. There was therefore no basis for inferring substitution merely from the employer's disagreement with the outcome.

3. The perversity challenge also failed. Appellate intervention on that ground is exceptional: the conclusion must be wholly impermissible, rather than simply one with which the appellate tribunal might disagree.

4. McCall v Castleton Crafts, [1979] IRLR 218, did not establish that the absence of a written warning was decisive. Its point was that a verbal warning may suffice where an employee knew of a rigid prohibition and had been repeatedly warned. Here the material issue was whether the claimant had been told, or should sufficiently have realised, that further conduct could lead to dismissal.

5. It was open to this experienced Employment Tribunal, including its lay members, to conclude that dismissal was outside the range of reasonable responses. The claimant had behaved over-authoritatively, but had not received a warning of the potential consequence of repetition and had not received management training. The conclusion was not perverse.

• Employment Appeal Tribunal: dismissed the employer's appeal against the unfair-dismissal finding. The challenge to the wrongful-dismissal finding had been treated at sift as unarguable.
• Employment Tribunal, Watford: for reasons delivered on 13 February 2011, upheld the claimant's complaints of unfair and wrongful dismissal.