BGC Technology Support Services Ltd v Moore

In an unfair-dismissal claim, the tribunal must assess the employer’s conduct under section 98(4) of the Employment Rights Act. It must consider whether the employer had reasonable grounds for its misconduct belief, made a reasonable investigation, and imposed a sanction within the band of reasonable responses. It must not substitute its own view for that of the employer.

Reasons must identify the directly relevant legal principles as required by rule 62(5) of the Employment Tribunal Rules of Procedure. Where the reasons omit that law and do not clearly show that the tribunal applied the correct questions, the decision cannot stand.

The claimant, a communications analyst, was dismissed following an investigation into procurement irregularities and the truthfulness of his accounts of relationships with suppliers. His internal appeal was dismissed, with the appeal officer also relying on his attempts after dismissal to obtain access to company IT systems.

Employment Judge Prichard upheld the claimant’s unfair-dismissal claim and made no deduction for the chance of a fair dismissal or for contributory conduct. BGC appealed. The central issue was whether the Employment Judge’s reasons showed that he had applied the statutory test for the reasonableness of the dismissal.

1. Appeal allowed. The Employment Judge’s decision could not stand and the case was remitted to a different Employment Judge.

2. There was no dispute that BGC genuinely believed the reasons given by the dismissing and appeal officers to be valid reasons. The issue under section 98(4) of the Employment Rights Act was therefore whether, in all the circumstances, BGC reasonably treated those reasons as sufficient to dismiss.

3. That inquiry required the Judge to consider that there was no onus on BGC, whether it had reasonable grounds for its belief in misconduct, whether its investigation was reasonable, and whether dismissal fell within the band of reasonable responses. The Judge also had to avoid substituting his own view for the employer’s.

4. Rule 62(5) of the Employment Tribunal Rules of Procedure required those directly relevant legal principles to be identified in the reasons. The Judge had made no reference to them and had instead made an erroneous observation about summary dismissal. This was an error of law.

5. The deficient and disorganised reasons did not clearly show that the correct questions had been asked. Several factual findings indicated possible substitution of the Judge’s own view for BGC’s, and some findings lacked an evidential basis or omitted relevant evidence. The question whether dismissal was within the range of reasonable responses had not properly been addressed. It was not appropriate for the Appeal Tribunal to decide the outstanding merits issues; they were remitted for fresh determination by another Employment Judge.

• Employment Appeal Tribunal: Allowed BGC’s appeal and remitted the unfair-dismissal claim to a different Employment Judge.
• Employment Tribunal, East London: Employment Judge Prichard upheld the claimant’s unfair-dismissal claim in a decision sent on 21 February 2014.