Croydon Health Services NHS Trust v Brown

In an ordinary unfair-dismissal claim, the tribunal must apply the range of reasonable responses test without substituting its own view for that of the employer. The test governs the reasonableness of the employer’s investigation and procedure as well as the substantive decision to dismiss.

An appellate tribunal must approach perversity grounds with particular caution. Factual errors will justify intervention only in rare circumstances where they amount to an error of law. Where an employment tribunal has failed to determine a properly raised issue of contributory conduct, the appeal tribunal may determine that issue itself where that course is proportionate and both parties invite it.

The claimant, a long-serving Project Officer, was summarily dismissed for alleged gross misconduct connected with dealings involving a contractor and his relatives’ firm. The Employment Tribunal rejected his protected-disclosure claim but upheld his ordinary unfair-dismissal complaint under section 98(4) of the Employment Rights Act 1996. It found that the Trust’s investigation was unreasonable and that there were procedural failings.

The Tribunal made no Polkey deduction and awarded £43,300, including a 10 per cent uplift under section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992. It did not address the Trust’s separately raised contention that the claimant had contributed to his dismissal. The Trust appealed, alleging substitution of view and perversity, challenging the omission on contribution, and challenging the uplift.

1. Appeal allowed in part. The Employment Tribunal’s finding of unfair dismissal was affirmed. Its compensation award was varied by a 25 per cent reduction for the claimant’s contributory conduct, reducing the overall award to £32,475.

2. The Tribunal had not substituted its own view for that of the employer. Applying the Burchell approach and the range of reasonable responses, it was entitled to find that the Trust had failed to make a reasonable investigation. In particular, it had not pursued the claimant’s case that the contractor had an ulterior motive, including by making further enquiries of the relevant manager. The Tribunal was also entitled to regard disclosure of the Operation Kateri material and the pre-disciplinary meeting as matters of concern.

3. The appeal did not meet the strict perversity threshold. Although one finding about the tendering process appeared inconsistent with the parties’ agreed position, the errors identified did not amount to the exceptional concatenation of factual error required to disclose an error of law. The EAT could not re-evaluate the evidence under the guise of perversity.

4. The Tribunal had erred by failing to determine contribution, a live issue identified in the agreed list and addressed in closing submissions. The omission could not be treated as an implicit rejection. The claimant’s approval of his brother’s firm’s invoices without supporting documentation was culpable conduct which materially contributed to his dismissal.

5. With both parties preferring that course, the EAT determined contribution itself rather than remitting it. A 25 per cent reduction was made to both the basic and compensatory awards. The Tribunal’s 10 per cent uplift under section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 was adequately reasoned and remained undisturbed.

• Employment Appeal Tribunal: Allowed the employer’s appeal only on contribution, affirmed the unfair-dismissal finding, and reduced compensation to £32,475: [2013] UKEAT 0601_11_0606.
• London South Employment Tribunal: Judgment promulgated on 22 July 2011 upheld the ordinary unfair-dismissal complaint and awarded £43,300. It rejected the protected-disclosure complaint.