Essex County Council & Anor v Pardoe (Unfair Dismissal : Reason for dismissal including substantial other)

In a misconduct dismissal case, the Employment Tribunal must apply the statutory fairness test in section 98(4) of the Employment Rights Act 1996. It must decide whether the employer held a genuine belief in the misconduct on reasonable grounds after a reasonable investigation, and whether dismissal fell within the range of reasonable responses.

The Tribunal must assess the employer's conduct and the information available when the decision was made. It must not substitute its own view of how an investigation should have been conducted or of the sanction that should have been imposed. Where material findings required for that assessment have not been made, the Appeal Tribunal should remit the case unless no properly directed Tribunal could reach a different result.

The claimant, a deputy headteacher, was summarily dismissed after the school concluded that she had physically and verbally abused her son at home and had committed two further acts of serious misconduct. She brought claims for unfair and wrongful dismissal.

An Employment Tribunal held that the dismissal was unfair and wrongful, and later awarded compensation. The school governing body and local authority appealed. They contended that the Tribunal had misdirected itself on the law governing misconduct dismissals, had applied an incorrect standard to the investigation, and had substituted its own judgment for that of the employer.

The central issue was whether the Tribunal had applied the correct section 98(4) fairness test and, if not, whether the Employment Appeal Tribunal could determine the merits itself rather than remit the case.

1. Appeal allowed. The Employment Tribunal made material errors of law in determining that the claimant's dismissal was unfair and wrongful. Its decision was set aside and the case was remitted to a differently constituted Employment Tribunal.

2. The Tribunal did not set out or refer to section 98(4) of the Employment Rights Act 1996. Its self-direction, drawn from Moore v C&A Modes, was incomplete for a misconduct dismissal. It did not address whether the employer believed that the claimant was guilty of identified misconduct, whether there were reasonable grounds for that belief, or whether the investigation was reasonable in the circumstances.

3. The correct inquiry was not whether there had been a “proper” investigation. The Tribunal had to apply objective standards and decide whether the employer's investigation was reasonable and whether dismissal was within the range of reasonable responses. Its statement that the employer should have re-interviewed a witness suggested that it had imposed its own view of how the investigation ought to have proceeded.

4. The Tribunal's conclusion on sanction also rested on an inadequate finding that dismissal was based solely on an assault. The dismissal letter identified wider alleged misconduct. The Tribunal made no express finding as to the misconduct which the employer believed had occurred or whether it had reasonable grounds for that belief.

5. The Employment Appeal Tribunal declined to substitute a decision. Applying Morgan v Electrolux Limited, it could do so only if no properly directed Tribunal could conclude that the claimant had been unfairly dismissed. Necessary factual findings remained outstanding, particularly on the investigation, the employer's belief and its grounds, and fairness in all the circumstances. Those matters were disputed and required reconsideration.

• Employment Appeal Tribunal: Allowed the employers' appeals, set aside the Employment Tribunal's findings of unfair and wrongful dismissal and its consequential award, and remitted the case to a differently constituted Tribunal.
• Employment Tribunal: Employment Judge Warren held that the claimant had been unfairly and wrongfully dismissed on 17 December 2012. Following a hearing on 12 February 2013, the Tribunal awarded £46,198.50. No citation is stated.