Adama v Partnerships in Care Ltd

An Employment Tribunal must itself determine whether a dismissal was fair in all the circumstances under Employment Rights Act 1996 section 98(4). A claimant’s concession that dismissal was appropriate, or a failure to advance developed submissions on sanction, does not remove that statutory duty.

In a gross-misconduct dismissal, the assessment includes whether mitigating matters mean that dismissal fell outside the range of reasonable responses. Where the Tribunal decides only that the employer’s investigation and conclusion were reasonable, but does not determine the fairness of dismissal, its decision contains a fundamental error and must be set aside.

The claimant, a nurse at a care home for vulnerable detained patients, was dismissed for gross misconduct after the employer concluded that he had used excessive force while restraining a patient.

The Employment Tribunal dismissed his unfair-dismissal claim. It found the investigation and the employer’s conclusion reasonable, but stated that its findings were confined to those issues. It did not decide whether dismissal itself was fair under Employment Rights Act 1996 section 98(4).

On appeal, the central issue was whether the Tribunal’s failure to determine the fairness of the sanction was an error despite the claimant’s concession in evidence and the limited prominence of his submissions on sanction.

1. Appeal allowed. The Employment Tribunal had failed to perform the mandatory task imposed by Employment Rights Act 1996 section 98(4): determining whether the employer acted reasonably in treating the established reason as sufficient for dismissal, having regard to equity and the substantial merits of the case.

2. That determination belongs to the Tribunal. A claimant cannot concede it away. Nor does an absence of developed argument on sanction relieve the Tribunal of its statutory responsibility. Such matters may be relevant evidence in the Tribunal’s assessment, but they do not decide the issue.

3. The Tribunal had considered only whether the employer reasonably investigated the allegation and reasonably concluded that misconduct had occurred. It had not considered whether dismissal was within the range of reasonable responses. In a gross-misconduct case, that overall assessment includes mitigating matters which may make dismissal unreasonable.

4. The omission was fundamental. The dismissal decision was therefore set aside, but the findings as to the reason for dismissal and the adequacy of the investigation were unchallenged and remained in force.

5. The case was remitted to a differently constituted Employment Tribunal to determine fairness under section 98(4). The remission was confined to that issue, including relevant evidence and submissions on mitigation, disparity of treatment and the gravity of the misconduct. A Burns-Barke remission was unsuitable.

• Employment Appeal Tribunal: allowed the appeal and remitted the issue of fairness under Employment Rights Act 1996 section 98(4) to a differently constituted Employment Tribunal.
• Employment Tribunal: dismissed the claimant’s unfair-dismissal claim by a decision sent to the parties on 19 December 2012.