Disotto Food Ltd v Santos

The standard required of Employment Tribunal reasons does not change because an Employment Judge sits alone. Reasons must enable the unsuccessful party to understand why they lost and enable an appellate court to identify any error of law. They need not contain unnecessary detail.

The reason for dismissal, and whether it concerns conduct or capability, is a question of fact for the Tribunal. An employer’s description of repeated failure to follow instructions does not prevent the Tribunal from finding that the reason was conduct.

The Employment Tribunal, sitting at Watford with Employment Judge Southam alone, held that the claimant factory and warehouse manager had been unfairly dismissed. It also found a breach of section 4 of the Employment Rights Act 1996 and awarded compensation of nearly £60,000.

At a preliminary hearing, the employer challenged, among other matters, the characterisation of the dismissal as conduct rather than capability, the adequacy of the Judge’s reasons when sitting alone, the treatment of prior disciplinary warnings, and aspects of compensation. The central issue determined was whether any proposed ground disclosed a reasonable point of law for the appeal to proceed.

1. The appeal was permitted to proceed only on limited grounds. The employer could pursue whether the Tribunal had substituted its own view for that of the employer, including in its approach to the three earlier warnings. It could also pursue specified compensation issues, including contributory fault and grossing-up.

2. The proposed challenge to the finding that the dismissal reason was conduct disclosed no arguable error of law. The reason for dismissal is a factual matter for the Tribunal. On the findings made, the disciplinary matters were essentially conduct matters. The employer’s characterisation of repeated failures to follow instructions did not require a finding of incapability.

3. The challenge based on the Employment Judge sitting alone was rejected. The required quality of reasons is the same whether a Tribunal consists of a Judge alone or a panel. Applying Meek v City of Birmingham District Council [1987] IRLR 250 CA, adequate reasons tell the unsuccessful party why they lost and disclose enough reasoning for an appellate court to determine whether an error of law occurred. A greater degree of explanation is not required merely because there are no lay members.

4. All remaining grounds raised no arguable point of law. The usual directions were to follow for a one-day substantive appeal hearing.

• Employment Appeal Tribunal: At a preliminary hearing, permitted the employer to pursue limited grounds concerning substitution, prior warnings and compensation, but rejected the other proposed grounds.
• Employment Tribunal, Watford: Employment Judge Southam, sitting alone, found the claimant unfairly dismissed, found a breach of section 4 of the Employment Rights Act 1996, and awarded compensation of nearly £60,000. Reasons were sent on 24 September 2012.