Beardwood Humanities College v Ham

In a conduct dismissal, the tribunal must assess whether the employee’s conduct in its totality was a sufficient reason for dismissal within section 98(4) of the Employment Rights Act. It is not the correct inquiry whether individual allegations, separately or cumulatively, amount to “gross misconduct”.

Unfair dismissal and wrongful dismissal are distinct causes of action. The historical concept of gross misconduct does not appear in section 98. In assessing the reasonableness of a conduct dismissal, the tribunal must not take account of an irrelevant prospective redundancy dismissal.

The claimant, a long-serving science teacher, was summarily dismissed following disciplinary proceedings concerning four allegations of misconduct. An internal appeal upheld three charges and partly upheld the principal safeguarding charge.

The Manchester Employment Tribunal held that conduct was the reason for dismissal, and that the employer had a genuine and reasonable belief in the misconduct. It nevertheless found the dismissal unfair, principally because the allegations did not constitute gross misconduct and because of the claimant’s prospective redundancy on the closure of the school.

The employer appealed against the liability judgment. The central issue was whether the Tribunal had correctly applied the reasonableness test under section 98(4) of the Employment Rights Act.

1. Appeal allowed. The Employment Tribunal’s conclusion on ordinary unfair dismissal could not stand. The question of the reasonableness of dismissal as a sanction was remitted to the same Tribunal, if practicable, for reconsideration. No further evidence was required.
2. The Tribunal adopted the wrong approach by asking whether the individual allegations, or their cumulative effect, constituted gross misconduct. Once it accepted the appeal panel’s findings on the four charges, it had to assess whether that conduct in its totality was a sufficient reason for dismissal under section 98(4) of the Employment Rights Act.
3. “Gross misconduct” is historical shorthand for repudiatory conduct which may entitle an employer to dismiss without notice. It is not a statutory requirement for a fair conduct dismissal. Wrongful dismissal and unfair dismissal remain separate causes of action; a dismissal may be fair but wrongful, or wrongful but unfair.
4. The Tribunal also took account of an irrelevant consideration. The fact that the claimant was expected later to lose her employment through redundancy on the school’s closure could not bear on the reasonableness of dismissing her for conduct.
5. The EAT did not uphold the separate submission that the Tribunal had substituted its own view for the employer’s. It could not determine whether the Tribunal’s ultimate conclusion on the seriousness of the charges was plainly right or wrong. That assessment therefore had to be reconsidered under the correct legal approach.

• Employment Appeal Tribunal: appeal allowed and the ordinary unfair-dismissal issue remitted to the same Employment Tribunal for reconsideration.
• Manchester Employment Tribunal: liability judgment promulgated on 29 October 2012 upheld the claimant’s ordinary unfair-dismissal claim. A later remedy judgment awarded compensation; it was not appealed.