Singh v DHL Services Ltd

Under section 98(4) of the Employment Rights Act 1996, the assessment of dismissal fairness is a neutral inquiry. The employer bears the burden of showing its reason for dismissal, but neither party bears a burden on the ultimate question of fairness. A tribunal must apply the objective range of reasonable responses test to both investigation and sanction.

An erroneous self-direction which retains the former Burchell burden may not invalidate the decision where the judgment as a whole shows that the tribunal applied the correct objective test and the result was unaffected. Reasons of an Employment Tribunal should be read fairly and in context, rather than by isolating imperfect language.

The Claimant, a trade union convenor employed by the Respondent, was summarily dismissed for misconduct after he authored and circulated a damaging document, denied authorship, and was found to have acted in bad faith. The Respondent concluded that his conduct had irreparably destroyed trust and confidence.

An Employment Tribunal sitting at Reading dismissed his claims, including his ordinary unfair dismissal claim. It found that the Respondent had reasonably investigated the allegations, genuinely believed misconduct had occurred on reasonable grounds, and acted within the range of reasonable responses in dismissing him.

The Claimant appealed on the grounds that the Tribunal had failed to apply the objective reasonable-employer test and had wrongly placed a burden of proof on the Respondent.

1. Appeal dismissed. The Employment Tribunal’s direction that the Respondent “must show” the elements derived from British Home Stores Ltd v Burchell was erroneous. Following the change made by the Employment Act 1980, there is no burden on either party when the Tribunal determines fairness under section 98(4) of the Employment Rights Act 1996.

2. The error did not affect the result. The erroneous burden was favourable to the Claimant, and the Tribunal’s reasons, read as a whole, showed that it had applied the objective test. It had correctly directed itself that the reasonable-employer standard applied both to the investigation and to the decision to dismiss. It repeatedly addressed reasonableness and had applied that standard when rejecting an allegation in the Claimant’s favour.

3. The Tribunal had properly undertaken the two-stage exercise. The Respondent had satisfied the procedural Burchell inquiry: reasonable investigation, genuine belief and reasonable grounds. The Tribunal then stood back and decided whether dismissal fell within the range of reasonable responses. Its isolated statement that this employer had decided to dismiss was imperfect, but did not show substitution of the employer’s view for the Tribunal’s objective assessment.

4. The Tribunal was entitled to treat the Respondent’s dismissal letter as showing that the Claimant’s lengthy service, clean record and contribution had been considered. It could nevertheless conclude that the misconduct had destroyed trust and confidence and that dismissal was reasonable.

5. The disparity argument was neither a freestanding permitted ground of appeal nor factually sustainable. The managers who wrongly used the Claimant’s name were not truly comparable with a person who had authored and distributed the document and lied about it.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the dismissal of his unfair dismissal claim.

• Employment Tribunal, Reading: sent reasons on 7 June 2012 and dismissed the Claimant’s claims, including ordinary unfair dismissal.