HOLT v RES On Site Ltd

An internal disciplinary appeal forms part of the overall dismissal process. Fairness under Employment Rights Act 1996, section 98(4), is assessed by considering that process in the round and applying the range of reasonable responses.

An appeal officer may uphold dismissal on misconduct that formed part of the original case, even if other matters relied on at the first stage fall away. That does not introduce a new reason for dismissal or increase the sanction, provided the employee knew of and could address the misconduct in question.

An Employment Tribunal may restrict evidence and cross-examination by reference to the issues to be decided. The EAT will not interfere with a contributory-fault finding absent a proper evidential basis or perversity.

The Claimant was summarily dismissed after forwarding internal emails to a former manager. The original dismissing officer relied on a cumulative picture of misconduct. On appeal, the appeal officer treated the second email as the real reason for dismissal and did not rely on the other alleged misconduct as a reason for dismissal.

The Employment Tribunal at Bristol dismissed claims for unfair and wrongful dismissal. It held that the disciplinary process, including the appeal, was fair and that dismissal for the second email fell within the range of reasonable responses. It also found that an alternative 80% reduction for contributory conduct would have been just and equitable.

The Claimant appealed, contending that the appeal had increased the sanction or changed the basis of dismissal, that evidence had wrongly been excluded, and that the contributory-fault finding was perverse.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal was fair.

2. The disciplinary appeal was part of the overall process and had to be considered in the round. The second email and the Claimant’s misconduct in sending it had been part of the original case. This was therefore unlike a case in which an appeal substitutes a later and different reason for dismissal. The appeal officer had not reached a factual conclusion of a more serious kind, nor had the sanction increased.

3. The Tribunal was entitled to assess, at the end of the whole process, whether dismissal for the second email was within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. It took account of the original officer’s evidence that he would not have dismissed for that matter alone, but was entitled to find dismissal reasonable given the serious and deliberate breach of trust.

4. The Employment Judge’s restriction of evidence and cross-examination was a permissible case-management decision. The Claimant had admitted sending the emails, and the alleged manner in which the employer acquired them did not arise on the issues as presented to the disciplinary managers or before the Tribunal.

5. The challenge to the alternative finding of contributory fault did not meet the demanding perversity threshold. Having found gross misconduct and a gross breach of trust, the Tribunal could conclude that the Claimant would have contributed to her dismissal if it had been unfair.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal, Bristol: on 29 October 2012, dismissed the claims for unfair dismissal and wrongful dismissal.