Kids City Ltd v Gayle

An Employment Tribunal deciding the fairness of a conduct dismissal must review the employer’s decision from the standpoint of the reasonable employer. It must not substitute its own assessment of the evidence, the relevance of the employee’s conduct, or the appropriate sanction. This applies to the investigation, disciplinary process and dismissal sanction under Employment Rights Act 1996, section 98(4).

Where the Tribunal’s own findings establish misconduct, an employee’s evasive response, and a context in which trust is materially important, it may be perverse to hold that dismissal fell outside the range of reasonable responses. The EAT may then set aside the unfair-dismissal finding and substitute dismissal of the claim.

The employer, a charity providing holiday care for disadvantaged children, dismissed a playworker after a complaint that he had injured a vulnerable child. The employer relied on his inappropriate interaction with children, admissions concerning similar conduct, and his evasive and uncooperative responses at the disciplinary hearing. The internal appeal upheld dismissal on more serious grounds.

The Employment Tribunal dismissed discrimination claims but upheld the unfair-dismissal claim. It held that the process was unreasonable and that dismissal was outside the range of reasonable responses. The employer appealed, alleging perversity, substitution of the Tribunal’s own view for that of a reasonable employer, and error concerning contributory conduct.

1. Appeal allowed. The Employment Tribunal’s finding of unfair dismissal was set aside. On its own findings of fact, dismissal was within the range of reasonable responses and the unfair-dismissal claim was dismissed.

2. The Tribunal was required to assess fairness by reviewing the employer’s decision from the perspective of a reasonable employer. The guidance in Burchell, the prohibition on substitution stated in Davies, and the approach in Sainsburys applied to investigation, procedure and sanction alike. The Tribunal instead formed its own view of the seriousness of the child’s injury, the relevance of the employee’s admissions concerning other children, and the lesser sanction it considered appropriate.

3. The employer had reasonably been entitled to take account of the allegation by a vulnerable child, supporting evidence, the employee’s admitted inappropriate interaction, and his evasive and inconsistent answers. It was also entitled to treat his conduct during the disciplinary hearing as relevant. The additional matters arose at that hearing, and his departure from a hearing he had been instructed to attend could not have been a surprise as a matter taken into account.

4. The Tribunal’s suggestion that further training, monitoring or a warning was the appropriate response substituted its own view for that of the employer. It also disregarded that the employee had already received relevant training. In the context of care for vulnerable children and the need for trust, the only lawful conclusion on the findings was that dismissal could fall within the reasonable range.

5. The EAT found the high perversity threshold met. It was therefore appropriate to substitute dismissal of the claim rather than remit the issue. The EAT added, obiter, that the Tribunal had unduly restricted the matters relevant to contributory conduct under Employment Rights Act 1996, section 123(6).

• Employment Appeal Tribunal: The employer’s appeal was allowed in [2014] UKEAT 0106_13_2402. The finding of unfair dismissal was set aside and the claim was dismissed.
• Employment Tribunal, London (South): The Tribunal dismissed the discrimination complaints but upheld the unfair-dismissal claim. Its judgment was sent to the parties on 7 November 2012.