Uniqwin UK Ltd v Weston

An Employment Tribunal must assess the fairness of a misconduct dismissal by reference to the employer’s actual belief, the grounds for that belief, and the reasonableness of its investigation. It must not substitute its own view of what evidence the disciplinary or appeal officer ought to have considered.

Procedural criticisms are material only if they bear on the employer’s reasons for dismissal. An appeal need not be heard by a person senior to the dismissing officer where that is impracticable; the relevant requirement is impartiality. Where the Tribunal’s own findings establish the facts on which the employer reasonably found gross misconduct, a finding of unfair and wrongful dismissal cannot stand.

The claimant, a shopping-centre manager, was summarily dismissed for gross misconduct after retaining cash from Bank Holiday market takings and failing to account for tax and National Insurance. He maintained that an earlier employer had authorised the arrangement.

The Employment Tribunal held that the dismissal was unfair and wrongful. It found serious disclosure and appeal-process defects, made Polkey and contributory-conduct reductions, and increased the awards for breaches of the Trade Union and Labour Relations (Consolidation) Act 1992.

The employer appealed. The central issue was whether the Tribunal had applied the unfair-dismissal test by examining the employer’s actual reasons and investigation, or had impermissibly substituted its own assessment of the evidence and procedure.

1. Appeal allowed. The Tribunal’s findings of unfair dismissal and wrongful dismissal were set aside. A finding of fair dismissal was substituted.

2. The Tribunal had erred by failing to focus on the employer’s actual reasons for finding two acts of gross misconduct. The undisclosed statement on which the Tribunal relied, and its criticism of the form of witness statements, did not bear on the dismissing officer’s belief that the claimant lacked authority under his contractual arrangements or had failed to account for tax and National Insurance.

3. The Tribunal’s own findings established the relevant factual basis for the employer’s belief: the claimant had not disclosed the additional income or its source to later employers; the sums could not have been disclosed for tax purposes; and receipt of them could not be reconciled with his contractual terms. The Tribunal had therefore substituted its view of the merits for that of the employer, contrary to the approach explained in [2011] ICR 704.

4. The Tribunal made the same error in its treatment of the internal appeal. It assessed what evidence the appeal officer should have seen rather than whether she could fairly decide on the material before her. Its criticism that she was not senior to the dismissing officer relied on the ACAS disciplinary guide, not a binding Code requirement. There was no allegation of bias.

5. The challenge to the Tribunal’s alternative remedy assessments failed. The finding that a fair dismissal was not inevitable, and that a further one-third reduction was appropriate for contributory conduct, did not meet the high perversity threshold. The challenge to the statutory uplift also failed because the record showed a concession of serious Code breaches and there was no evidence that it was invalid.

6. The wrongful-dismissal conclusion depended on the defective unfair-dismissal reasoning and necessarily fell with it.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a finding of fair dismissal: [2014] UKEAT 0454_13_1508.
• Employment Tribunal, Newcastle-upon-Tyne: held that the claimant had been unfairly and wrongfully dismissed, reduced the unfair-dismissal awards, and applied a 20% uplift.