Pitterson-Donaldson v Manchester City Council

An appellate challenge for perversity fails where there was credible evidence capable of supporting the Employment Tribunal’s findings. The threshold for perversity is high.

In determining the fairness of a conduct dismissal, the central question is whether dismissal fell within the range of reasonable responses. The seriousness of the employee’s conduct is relevant to that assessment. A tribunal may consider contractual duties and an employer’s description of conduct as gross misconduct, provided it does not substitute its own decision for that of the employer.

The claimant, a social worker, was summarily dismissed after she failed to read and act on a report identifying serious safeguarding concerns about a vulnerable service user. The employer treated the omission as gross misconduct.

An Employment Tribunal sitting at Manchester in January 2013 unanimously dismissed her complaints of unfair dismissal and disability discrimination under the Equality Act 2010. Her internal appeal against dismissal had also been dismissed.

The Employment Appeal Tribunal permitted two grounds to proceed: whether the Tribunal’s finding that the allegation had been put to the claimant was perverse, and whether the Tribunal had substituted its own view by referring to her job description and gross misconduct.

1. Appeal dismissed. The Employment Tribunal’s finding that the claimant knew that her failure to read the report was an allegation against her, and had an opportunity to address it, was supported by evidence. The allegation had been explored during the investigation and the disciplinary process, and the claimant’s explanation remained materially the same. The high threshold for perversity was therefore not met.

2. There was no impermissible substitution. The Tribunal was entitled to consider the claimant’s contractual duties and job description when assessing the seriousness of the conduct for which the employer had dismissed her. That consideration did not displace the correct question: whether this employer’s decision to dismiss for conduct it regarded as gross misconduct fell within the range of reasonable responses.

3. The contractual classification of conduct as gross misconduct was not itself determinative of unfair dismissal. It was, however, relevant factual material bearing on the gravity of the failure to read a report which identified risks to a vulnerable service user. The Tribunal had found that the employer had reasonable grounds for its belief, had made adequate inquiry, and had conducted a full hearing and appeal. Those findings supported its conclusion that dismissal was fair.

4. The authority relied upon concerning the assessment of reasonableness did not assist on the facts of this case.

• Employment Appeal Tribunal: appeal dismissed: [2014] UKEAT 0499_13_2808.
• Employment Tribunal, Manchester: in January 2013, unanimously dismissed the claimant’s complaints of unfair dismissal and disability discrimination.