Thames Honda Ltd v Purkis

Where an agreed list of issues concedes the reason for dismissal, an Employment Tribunal should not decide that issue without first giving the parties an opportunity to address a proposed revision. The error will not undermine an unfair-dismissal decision where the tribunal has also determined, in the alternative, that dismissal was unfair.

In assessing fairness, a tribunal may consider the employer’s procedures, the ACAS Code and defects in an appeal. A claimant’s explanation for alleged misconduct may require investigation. For harassment related to sex, the claimant must first establish facts from which that conclusion could be drawn. Reasons which do not show that the first-stage burden was met require remission of that issue.

The claimant, a sales and marketing assistant, was summarily dismissed after an absence from work. She alleged that she had been assaulted at work by a colleague with whom she had previously had a relationship, and that her manager had made repeated crude sexual comments.

The Employment Tribunal held that she had been unfairly dismissed and had suffered harassment related to sex. The employer appealed against the findings on the reason and fairness of dismissal, and against the harassment findings, including the burden of proof, course of employment and reasonable-steps defence.

The central issue was whether any errors in the Tribunal’s treatment of those matters disclosed an error of law requiring the liability decision to be set aside.

1. Appeal allowed in part. The Employment Tribunal erred by deciding that the employer had not established a potentially fair reason for dismissal when the agreed list of issues recorded that point as conceded. If the evidence appeared to justify a change, the Tribunal should have raised the matter with the parties and revised the issues expressly. Its finding on the reason for dismissal could not stand.

2. That error did not affect the unfair-dismissal outcome. The Tribunal had separately considered whether dismissal would have been fair if there had been a permissible reason. It was entitled to consider the employer’s own procedure and the ACAS Code, the absence of a pre-dismissal process, the inadequacies of the appeal, and the insufficient investigation into the claimant’s explanation. Those were relevant matters under section 98(4) of the Employment Rights Act, and its conclusion of unfair dismissal disclosed no substitution, perversity or other error of law.

3. The finding that the colleague’s violence was harassment related to sex was set aside. The Tribunal’s reasons did not show whether the claimant had first proved facts sufficient to shift the burden of proof, or whether the Tribunal had prematurely required an explanation from the employer. The point was remitted.

4. The remaining harassment findings stood. The Tribunal was entitled to find that participation in some workplace joking did not establish that the manager’s crude sexual comments were wanted. It was also entitled, on the facts, to find that assaults occurring at work by a colleague perceived as senior were in the course of employment. It had separately considered, and permissibly rejected, the reasonable-steps defence for each alleged harasser.

5. The remitted burden-of-proof issue was sent to the same Employment Tribunal. That course was proportionate, there was no suggestion of bias or partiality, and no further evidence was envisaged.

• Employment Appeal Tribunal: appeal allowed only on the finding that the colleague’s conduct was related to sex; that issue was remitted to the same Employment Tribunal. The unfair-dismissal decision and all other harassment findings were upheld.
• Employment Tribunal, Watford: reserved judgment sent on 26 April 2013. It upheld the claimant’s complaints of unfair dismissal and harassment under section 26 of the Equality Act 2010.