South West London & St George's Mental Health NHS Trust v Pooloo & Anor

In deciding whether a conduct dismissal was fair under Employment Rights Act 1996, an Employment Tribunal must assess whether the employer acted within the range of reasonable responses. It must not substitute its own view of the employee’s conduct or of the appropriate sanction.

However, the Tribunal may scrutinise whether the employer fairly evaluated the evidence on which it relied. Where the employer holds material information casting doubt on the reliability of witnesses, particularly information available from assessments of vulnerable service users, it may be unreasonable to withhold it from employees facing disciplinary proceedings. The Tribunal may also find that an allegation of physical aggression was insufficiently investigated, including as to the alleged employee’s intention, without impermissibly determining criminal liability for assault.

The Trust summarily dismissed two long-serving employees who worked at a mental-health rehabilitation unit. It found that they had committed gross misconduct in their treatment of vulnerable service users. Both internal appeals failed.

An Employment Tribunal held that the dismissals were unfair under section 98(4) of the Employment Rights Act 1996. It found that the disciplinary process had accepted potentially unreliable service-user accounts without proper evaluation, had withheld relevant capacity assessments, and had insufficiently investigated an allegation that one employee had physically pushed a service user.

The Trust appealed, contending that the Tribunal had substituted its own judgment for that of the employer and had reached perverse conclusions.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the dismissals fell outside the range of reasonable responses. Although parts of its reasoning appeared close to substitution, it had not impermissibly substituted its own view for that of the Trust.

2. The Tribunal was entitled, and bound, to examine carefully the evidence on which the Trust relied. The vulnerability of service users required complaints to be taken seriously, but fairness to the long-serving employees also required careful fact-finding. Having heard the witnesses, the Tribunal was entitled to conclude that the outcome had been predetermined.

3. The Trust had obtained capacity assessments as part of its patient-care procedures. Those assessments indicated that some complainants might be unreliable. That information was not disclosed to the employees before their disciplinary hearings or appeals. The EAT stressed that service users can be reliable witnesses and that advance information about reliability will be unusual. On these facts, however, the information was essential to a fair disciplinary procedure, and the Tribunal was correct to treat its non-disclosure as unreasonable.

4. The Tribunal was not required to decide whether the alleged pushing incident constituted criminal assault. If proved, the conduct could amount to assault, and an employer could have accepted the direct witness account of aggressive intent. Nevertheless, the Tribunal was entitled to find that the Trust had not sufficiently investigated the proper inference as to the employee’s intention when the physical contact occurred.

5. The EAT could not characterise the Tribunal’s conclusions as perverse. It had to avoid substituting its own assessment for that of the fact-finding Tribunal, which had heard the evidence.

• Employment Appeal Tribunal: dismissed the Trust’s appeal and upheld the finding that both employees had been unfairly dismissed.
• Employment Tribunal, London South: in a judgment sent with reasons on 18 June 2012, held that the dismissals were unfair under section 98(4) of the Employment Rights Act 1996. A remedy hearing was adjourned to address contribution and any Polkey reduction.