Spur Way Foods Ltd v Zafar & Ors

In a misconduct unfair-dismissal claim, the tribunal must assess the employer’s decision under section 98 of the Employment Rights Act 1996. It must not decide for itself what happened and then treat the employer’s different view as unfair. The material questions are the employer’s reason and belief, the reasonable grounds and investigation supporting it, and whether dismissal fell within the range of reasonable responses.

Actual facts remain relevant to distinct issues such as contractual entitlement to notice pay and contributory conduct. Those issues must be analysed separately. Each dismissed employee also requires individual consideration.

Three employees were summarily dismissed after a workplace fight involving a fourth employee. They brought claims for unfair dismissal and notice pay before the Employment Tribunal at Watford.

The Employment Judge found the dismissals unfair after making findings about the incident, including provocation and possible self-defence. The employer appealed, contending that the Tribunal had substituted its own view of events for the statutory inquiry into the employer’s decision. The central issue was whether the Tribunal had applied the correct approach under section 98 of the Employment Rights Act 1996.

1. Appeal allowed. The Employment Tribunal’s decision could not stand. Its reasoning showed that it may have substituted its own conclusion about what occurred in the fight for the required assessment of the employer’s decision under section 98 of the Employment Rights Act 1996.

2. In a conduct dismissal, the employer must establish the reason for dismissal. Once that is done, the Tribunal makes an evaluative assessment without a formal burden of proof. It must ask what the employer knew and believed, whether there were reasonable grounds for that belief after a reasonable investigation, and whether dismissal was within the range of reasonable responses.

3. The Tribunal had instead made extensive findings about the incident itself, without adequately identifying the conclusions reached by the employer’s disciplinary and appeal decision-makers. It then criticised the investigation because it did not reach the Judge’s own conclusions. Its treatment of alleged religious provocation illustrated that error: the material before the employer included an answer that there were no religious issues, whereas the Judge treated the matter as significant provocation.

4. The Tribunal also needed to distinguish the unfair-dismissal inquiry from issues requiring an objective finding of actual facts. A repudiatory breach relevant to summary dismissal and notice pay, and any contributory conduct relevant to remedy, require factual assessment rather than an inquiry into the employer’s state of mind. It should also consider each employee’s case individually and any genuine difference between them and employees who were not dismissed.

5. The whole case was remitted for a complete rehearing before a fresh Tribunal. The original Judge had expressed a sufficiently clear view that rehearing before the same Tribunal would be unfair.

• Employment Appeal Tribunal: appeal allowed; the Employment Tribunal decision was set aside and the whole case remitted for rehearing before a fresh Tribunal.
• Employment Tribunal at Watford: found that the three Claimants had been unfairly dismissed and addressed their notice-pay claims.