Noor v Metroline Travel Ltd

In determining fairness under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must review the dismissal, including its sanction, while recognising that an employer may reasonably respond in more than one way. An appellate court may interfere only for an error of law; perversity requires an overwhelming case that no reasonable tribunal, properly applying the law and evidence, could have reached the conclusion.

A deliberate interference with a bus cab CCTV camera may reasonably be treated as gross misconduct warranting dismissal, despite personal mitigation. Fresh evidence should ordinarily first be put to the Employment Tribunal by reconsideration. A free-standing application to adduce it before the Employment Appeal Tribunal, unconnected with an error of law, is inappropriate.

The claimant, a bus driver, was dismissed after deliberately covering the CCTV camera in his cab for more than an hour. He accepted the conduct but relied on the recent violent death of his brother as mitigation. The employer treated interference with CCTV as gross misconduct. Its appeal panel did not maintain an inference that the claimant had acted habitually, but upheld dismissal.

Employment Judge Smail, sitting at Watford, dismissed claims for unfair dismissal and breach of contract on 24 April 2013. The claimant appealed, contending that the finding that dismissal fell within the range of reasonable responses was perverse. He also sought to preserve a fresh-evidence issue concerning another employee who had received a final warning after a similar incident, pending an application for reconsideration by the Employment Judge.

1. Appeal dismissed. The Employment Judge had correctly directed himself on the statutory question under section 98(4) of the Employment Rights Act 1996. Once the employer had established the reason for dismissal, the Tribunal had to decide whether it acted reasonably in treating that reason as sufficient, having regard to equity and the substantial merits. That review included the sanction, but did not permit the Tribunal to substitute its own preferred response where more than one reasonable employer response was available.
2. The Employment Appeal Tribunal could intervene only on a point of law. A perversity challenge succeeds only where an overwhelming case shows that no reasonable tribunal, properly appreciating the evidence and law, could have reached the conclusion. The Employment Judge was entitled to regard the employer's CCTV policy as fair, even though he had not expressly addressed that question.
3. A reasonable employer could take deliberate covering of a bus driver's CCTV camera seriously. CCTV assisted not only later evidence-gathering but deterrence and safe conduct. Public-service buses required high standards, and an employer could reasonably regard the deliberate obscuring of a camera for more than an hour as gross misconduct justifying dismissal, notwithstanding the claimant's tragic bereavement. The conclusion that dismissal fell within the range of reasonable responses was therefore not perverse.
4. The fresh-evidence issue was properly for the Employment Tribunal on an application for reconsideration. Paragraph 10.1 of the 2013 Practice Direction reflected the proper allocation of functions: the Tribunal is the fact-finding body, while the Employment Appeal Tribunal determines questions of law. A free-standing application to admit fresh evidence in the Appeal Tribunal was inappropriate. The claimant could seek reconsideration without abuse of process and, if a later decision involved an error of law, bring a separate appeal.

• Employment Appeal Tribunal: Appeal dismissed. The finding that dismissal was fair was upheld. The claimant was left to seek reconsideration by the Employment Tribunal on the fresh-evidence issue and, if necessary, to bring a separate appeal.
• Employment Tribunal, Watford: On 24 April 2013, Employment Judge Smail dismissed the claimant's claims for unfair dismissal and breach of contract.