Tew v T

A dismissal is not procedurally unfair merely because the employer did not hold a formal grievance meeting before commencing a disciplinary investigation. The question is whether the employer was required by its procedure, properly read, to take that step and whether the process fell outside the range of reasonable responses.

An Employment Tribunal's finding of procedural unfairness may be set aside where it rests on a plain misunderstanding of the employer's procedure and is unsupported by the evidence. An appellate tribunal must not substitute its own view, but may intervene where the impugned finding was not an available conclusion.

The claimant, a desktop project manager, was dismissed for inappropriate sexual behaviour towards a junior member of staff following an investigation, disciplinary hearing and unsuccessful internal appeal.

The Employment Tribunal upheld his unfair-dismissal claim solely because it considered that the employer should first have held a stage 1 grievance hearing with the complainant. It otherwise found that the employer reasonably investigated the allegations, genuinely believed the claimant guilty, and that dismissal fell within the range of reasonable responses. It made a 100% Polkey deduction to the compensatory award.

The employer appealed to the Employment Appeal Tribunal. The central issue was whether the Tribunal's finding of procedural unfairness was sustainable on a proper reading of the employer's grievance procedure and the evidence.

1. Appeal allowed. The Employment Tribunal's finding of unfair dismissal was based on a plain misunderstanding of the employer's grievance procedure and could not stand.

2. The procedure did not require the manager to hold a stage 1 grievance hearing before initiating disciplinary action for alleged harassment. The policy permitted a disciplinary investigation in cases of bullying and harassment. The complainant did not seek such a hearing once the manager decided to investigate the serious allegations.

3. The claimant had been offered an opportunity to meet the manager when first told that a grievance had been made, but did not attend and later asked not to be contacted. In those circumstances, proceeding directly to a disciplinary investigation was within the range of reasonable responses.

4. The Tribunal had correctly directed itself against substituting its own view, by reference to [1982] IRLR 439. However, the EAT held that appellate intervention was justified because the decisive finding was unsupported by the evidence. Applying the approach in [1991] IRLR 309, the Tribunal had reached an impermissible conclusion through its erroneous reading of the policy.

5. Since there was no procedural breach, the sole basis for the unfair-dismissal finding fell away. The EAT substituted a finding that the dismissal was fair. No entitlement to compensation arose.

• Employment Appeal Tribunal: Allowed the employer's appeal and substituted a finding that the dismissal was fair.
• Employment Tribunal (Teesside): Upheld the unfair-dismissal complaint, but made a 100% Polkey deduction to the compensatory award. It awarded the basic award.