Ebuzoeme v The Crown Prosecution

In an unfair-dismissal case, an Employment Tribunal may find that an employer reasonably relied on factual findings from a prior grievance investigation where the employee had a proper opportunity to challenge them but provided no material challenge. The decision-maker may then reach an independent conclusion on misconduct; an inaccurately worded disciplinary charge does not itself establish that the decision was made on a false assumption.

A disciplinary policy giving illustrative and non-exhaustive examples does not prevent conduct described as minor misconduct from amounting, after a disciplinary hearing, to gross misconduct. The seriousness and likely consequences of knowingly false allegations, and their effect on trust, confidence and integrity, may place dismissal within the range of reasonable responses.

The Claimant, a Senior Crown Prosecutor, brought claims including race discrimination, victimisation, whistleblowing detriment and unfair dismissal. The Employment Tribunal dismissed all claims after a 15-day hearing.

His dismissal followed a grievance investigation which found that parts of his allegations were false, embellished or made in bad faith. The disciplinary charge inaccurately stated that the grievance investigation had found the allegations malicious and vexatious. The dismissing officer nevertheless considered the investigator’s factual findings and the Claimant’s response before concluding that misconduct was proved.

Following a preliminary appeal hearing, only two unfair-dismissal grounds proceeded: whether the Tribunal adequately addressed the alleged false assumption, and whether dismissal was unreasonable under the Respondent’s disciplinary policy.

1. Appeal dismissed. The Employment Tribunal gave sufficient reasons and made conclusions which were neither perverse nor affected by an error of law.

2. The Employment Tribunal was entitled to find that the dismissing officer had not treated the grievance investigator as having made a definitive finding of malicious and vexatious conduct. Although correspondence and the charge overstated the investigator’s conclusion, the dismissal letter showed that the officer started with findings that the Claimant had submitted false and embellished information. She reached her own conclusion after considering his written response.

3. The Tribunal was entitled to find that the employer had a reasonable belief in misconduct. It was reasonable to rely on the investigator’s extensive factual findings where the Claimant did not provide material challenging them. The Tribunal had also sufficiently addressed the complaint that a further disciplinary investigation was required.

4. The disciplinary policy was a guide rather than a prescriptive classification of misconduct. Its express terms allowed conduct initially appearing minor to be treated differently after a disciplinary hearing. The Tribunal permissibly relied on the gravity and potential consequences of the allegations, the importance of integrity in the legal team, and the resulting damage to trust and confidence. Those matters supported its conclusion that gross misconduct and dismissal fell within the range of reasonable responses.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal’s dismissal of the unfair-dismissal claim.
• Employment Tribunal, London (South): by judgment dated 14 June 2011, dismissed the Claimant’s claims for race discrimination, victimisation, whistleblowing detriment and unfair dismissal.