The Co-Operative Group Ltd v Baddeley

Where an employer relies on misconduct as the reason for dismissal, an employment tribunal must distinguish the fairness inquiry into the employer’s reasonable belief and investigation from any finding about whether the employee in fact committed the alleged conduct. That distinction does not prevent findings of actual conduct where they are needed for contributory fault.

A tribunal may find that asserted misconduct was a pretext and that another reason caused dismissal. However, it must give sufficient reasons for concluding that alleged disclosures were protected disclosures, including the statutory basis on which they qualified. Failure to do so may require further reasons before an automatic-unfair-dismissal appeal can be determined.

The claimant was dismissed summarily for alleged gross misconduct concerning pharmaceutical stock. He alleged that the stated misconduct case was a pretext and that he was dismissed because he had raised concerns about the storage and sale of stock and about a Chinese joint venture.

The Stoke-on-Trent Employment Tribunal upheld claims for protected disclosures, automatic unfair dismissal under section 103A of the Employment Rights Act 1996, ordinary unfair dismissal, detriment and breach of contract. The employer appealed, contending that the tribunal had substituted its own assessment of misconduct, given inadequate reasons and failed to explain why the alleged disclosures were protected.

The central issue was whether the tribunal’s findings on the real reason for dismissal and ordinary unfairness could stand despite deficiencies in its reasons on protected-disclosure status.

1. The appeal could not be finally determined. The Employment Appeal Tribunal requested further reasons from the Employment Tribunal on why the disclosures were protected disclosures. It had not identified the statutory categories relied upon or explained why it rejected the employer’s arguments that the matters were allegations rather than information, that the claimant’s belief was unreasonable, or that an ulterior motive prevented qualification.

2. The tribunal’s finding that the real reason for dismissal was the claimant’s disclosures, rather than the alleged misconduct, was open to it. Its findings concerning the meeting on 14 October and the ensuing disciplinary process supported the conclusion that the misconduct allegations were used as a pretext.

3. The tribunal had not impermissibly substituted its own view of whether the claimant committed misconduct for the employer’s view. If the asserted misconduct reason had been accepted, the Burchell inquiry would have required assessment of the employer’s reasonable belief, based on an investigation adequate for the circumstances, rather than the tribunal’s own factual view. But the tribunal found that the asserted reason was not the real reason. Its factual findings could also be relevant to the pleaded issue of contributory conduct.

4. Employment tribunals should keep those two inquiries separate. They should distinguish findings about the reasonableness of an employer’s belief from findings, where necessary, on whether the employee actually committed the alleged conduct.

5. The further reasons on protected disclosure could affect only the automatic-unfair-dismissal claim under section 103A of the Employment Rights Act 1996. They could not affect the finding that dismissal was unfair under the ordinary law because the dismissal was caused by the disclosures, whether or not they were protected.

• Employment Appeal Tribunal: requested further reasons before finally determining the appeal. It upheld the Employment Tribunal’s conclusion that the ordinary unfair-dismissal finding was unaffected by the unresolved protected-disclosure reasoning.
• Employment Tribunal, Stoke-on-Trent: upheld claims for protected disclosures, automatic unfair dismissal under section 103A of the Employment Rights Act 1996, ordinary unfair dismissal, detriment and breach of contract. Citation not stated in the judgment.