Revenue and Customs v Hart

An Employment Tribunal must give sufficient reasons for rejecting an employer’s stated reason for dismissal, particularly where that rejection determines both unfair-dismissal and discrimination claims. Its findings must also be internally coherent. A finding that an employee failed to disclose the true basis of a penalty notice could not be reconciled with a conclusion that the employer lacked reasonable grounds to find misconduct in that non-disclosure.

Where inadequate reasons and inconsistent findings prevent appellate review, the decision cannot stand. The appropriate course is to allow the appeal and remit the unfair-dismissal and dismissal-discrimination issues to a freshly constituted tribunal.

The claimant, a disabled administrative officer, received a Penalty Notice for Disorder following an alleged shop theft. He told management that the matter arose from an altercation. The employer dismissed him summarily for failing adequately to disclose the facts surrounding the notice.

The Liverpool Employment Tribunal unanimously held the dismissal unfair. By a majority, it also held that the real reason for dismissal was disability rather than conduct; the Employment Judge dissented on that issue. The employer appealed, contending that the majority’s reasoning on the reason for dismissal was inadequate and that the unfair-dismissal conclusion conflicted with the Tribunal’s own factual findings.

1. Appeal allowed. The Tribunal’s decision could not stand and the claims were remitted to a differently constituted Tribunal for rehearing.

2. The majority had rejected the employer’s stated conduct reason and inferred that the claimant’s disability was the real reason for dismissal. That conclusion was inadequately reasoned. The Tribunal did not explain why the dismissing officer’s account was wholly unsatisfactory and unconvincing. Clear reasons were required for rejecting his evidence on the central issue of the reason for dismissal.

3. The majority’s conclusion also overlooked both the stated misconduct allegation and the Tribunal’s own finding that the claimant had described the incident as an altercation although the Penalty Notice concerned alleged theft. On that finding, he had not disclosed the alleged theft on either relevant occasion. The Tribunal had also been referred to the employer’s policy requiring notification of such a notice.

4. The unanimous unfair-dismissal finding was likewise unsustainable. The Tribunal appeared to conclude that the dismissing officer lacked reasonable grounds to find misconduct. That was inconsistent with its factual finding concerning the claimant’s failure to reveal the alleged theft. Although the Tribunal had not fully directed itself under section 98(4) of the Employment Rights Act 1996, the Appeal Tribunal assumed that it had the Burchell and range-of-reasonable-responses tests in mind.

5. The judgment was not adequately reasoned on Meek principles or under rule 30(6) of the 2004 ET Rules. The unfair-dismissal and disability-discrimination-by-dismissal issues were remitted for a fresh rehearing.

• Employment Appeal Tribunal: appeal allowed; the decision of the Liverpool Employment Tribunal was set aside and the unfair-dismissal and dismissal-discrimination claims were remitted to a different Tribunal.
• Liverpool Employment Tribunal: unanimously found unfair dismissal and, by a majority, found unlawful disability discrimination by dismissal. Reasons were promulgated on 11 June 2013.