Autism Sussex Ltd v Angel

An appellate tribunal must not substitute its own view for that of the employment tribunal or employer when reviewing a conduct dismissal. A finding that an investigation was unreasonable will stand where it is supported by evidence and the tribunal applied the standards of the reasonable employer.

Wrongful dismissal is a separate common-law question. The employer must prove, on the balance of probabilities, that the employee committed repudiatory misconduct. A tribunal must give reasons showing how it resolved that issue. Evidence of pre-dismissal misconduct discovered after termination cannot make a dismissal fair, but may be relied on in answer to a wrongful-dismissal claim.

The employee, a senior support worker, was summarily dismissed for allegedly making false claims for payment for work said to have been done at home. The Employment Tribunal upheld her claims for unfair dismissal and wrongful dismissal. It found that the employer's investigation was unreasonable, that the investigator's dual role was procedurally unfair, and that dismissal fell outside the range of reasonable responses.

The employer appealed. It contended that the Tribunal had substituted its own view or reached a perverse conclusion on unfair dismissal. It also challenged the wrongful-dismissal finding, submitting that the Tribunal had not applied or explained the proper common-law test.

1. The appeal was dismissed as to unfair dismissal. The Employment Tribunal had directed itself not to substitute its own view. There was ample material supporting its findings on the inadequacy of the investigation. Its reasoning showed that it had assessed the investigation against the standards of the reasonable employer, rather than against its own preferred process. Its conclusion was therefore neither an impermissible substitution of view nor perverse.
2. The appeal was allowed as to wrongful dismissal. That claim required a different inquiry from statutory fairness. The employer had to establish, on the balance of probabilities, that the employee had in fact committed misconduct amounting to a repudiatory breach of contract, entitling summary dismissal.
3. The Tribunal gave no self-direction on that test. Nor did paragraph 50, or any other part of its reasons, explain how it had determined whether the alleged misconduct was proved. Its finding of wrongful dismissal could not therefore stand.
4. The court distinguished the relevance of later-acquired evidence to the two claims. Under [1977] ICR 662 (HL), post-termination discovery of pre-termination misconduct does not bear on the fairness of dismissal, although it may affect unfair-dismissal compensation. At common law, however, such knowledge may provide a defence to wrongful dismissal under [1888] 39 CHD 339 (CA). Any criminal conviction concerning the matters under investigation could consequently be relevant to the wrongful-dismissal claim, but not to fairness.
5. The wrongful-dismissal issue was remitted to the same Employment Tribunal, chaired by Employment Judge Vowles, for reconsideration with full reasons at the deferred remedy hearing.

• Employment Appeal Tribunal: the employer's appeal was dismissed on unfair dismissal but allowed on wrongful dismissal. The wrongful-dismissal claim was remitted to the same Employment Tribunal.
• Employment Tribunal (Ashford): by a judgment promulgated on 17 December 2012, upheld the employee's complaints of unfair dismissal and wrongful dismissal.