P&O Ferrymasters Ltd v Thorogood

In deciding whether a conduct dismissal was fair under section 98(4), an Employment Tribunal must review the employer’s investigation, fact-finding, process and sanction by the objective standard of the reasonable employer. It must not begin with, or allow its reasoning to be driven by, its own strongly held view of the disputed events.

A correct self-direction is insufficient where the reasons reveal a substitutionary approach. The Tribunal must explain why the employer’s actual reasoning or investigation fell outside the range of reasonable responses. An appeal tribunal must itself avoid substituting its view; where the facts require evaluative findings, the proper course is remittal rather than substitution.

The employer summarily dismissed a crane driver for gross misconduct after concluding that he had failed to report, and was concealing, a second and serious collision. Its conclusion relied on the extent of the damage, accounts from contractors and engineering evidence.

The Employment Judge upheld the employee’s unfair-dismissal claim. Although accepting that the employer genuinely believed misconduct had occurred and that there was no procedural defect, the Judge found that there had been only one collision. He held that the employer’s conclusion of a second collision, and its investigation, fell outside the range of reasonable responses.

The employer appealed. The central issue was whether the Employment Judge had applied the statutory reasonable-employer test or had impermissibly substituted his own view of the facts and the investigation.

1. Appeal allowed. The Employment Judge’s reasoning showed that he had not applied the objective reasonable-employer test required by Employment Rights Act 1996, section 98(4).

2. The Tribunal’s task was to identify why and how the employer dismissed, then review the employer’s investigation, procedure, fact-finding and sanction by reference to the reasonable employer. A range of reasonable responses may be available. The Tribunal was not entitled to decide for itself whether there had been one collision or two and to use that conclusion as the starting point for assessing the dismissal.

3. The Judge repeatedly began from his own firm conclusion that there had been only one collision. He did not adequately address why the employer’s contrary reasoning, based on extensive damage and the conflict between the accounts of the employee, manager and contractors, was outside the range of reasonable responses. His reliance on the supposed inherent improbability of two collisions did not supply that missing reasoning.

4. The same substitutionary approach infected the finding that the investigation was unreasonable. The contractors’ location was known and the employer had opinions from experienced engineers. The Judge did not explain what further investigation a reasonable employer was required to undertake, or why the existing investigation was outside the reasonable range.

5. The Appeal Tribunal could not substitute its own decision on fairness. The case was remitted for a rehearing before a different Employment Judge.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the unfair-dismissal claim for rehearing before a different Employment Judge: [2014] UKEAT 0124_14_1009.
• Employment Tribunal (Cardiff): Employment Judge Beard upheld the employee’s unfair-dismissal claim by a judgment dated 28 November 2013.