Royal Free Hampstead NHS Trust v Shah

In a misconduct dismissal case, an Employment Tribunal must assess the employer's investigation, belief and grounds for belief, and then decide objectively whether dismissal fell within the band of reasonable responses. It must not decide the matter by conducting its own fact-finding exercise or by imposing its own preferred procedure or sanction.

A Tribunal must explain why the employer's approach was outside that range. Assertions that evidence should have been tested, further inquiries made, or a warning imposed do not suffice without an analysis of the reasonableness of the employer's actual decision at the time.

The employer dismissed a phlebotomist after concluding that he had taken a patient's blood without consent and had failed to protect the patient's privacy and dignity. The claimant's internal appeal was unsuccessful.

An Employment Tribunal held that the dismissal was unfair. It found that the employer's investigation and procedure were flawed and that a warning should have been considered. The employer appealed, contending that the Tribunal had substituted its own view for that of a reasonable employer and had failed to give adequate reasons.

The central issue was whether the Tribunal had correctly applied the misconduct-dismissal reasonableness principles.

1. Appeal allowed. The Employment Tribunal's decision was set aside and the claim was remitted to a differently constituted Tribunal for a complete rehearing.

2. The Tribunal had correctly directed itself by reference to British Home Stores v Burchell [1980] IRLR 379. However, its subsequent reasoning showed that it had fallen into the prohibited substitution mindset. The proper question was whether the employer's investigation, procedure and decision to dismiss fell within the range open to a reasonable employer, not whether the Tribunal preferred further investigation, different procedures or a lesser sanction.

3. The Tribunal had not explained why it was unreasonable for the dismissing officer to treat the claimant's email concerning his contractual status as irrelevant to the disciplinary allegation. Nor had it explained why the employer had to call elderly patients as witnesses, devise an alternative means of testing their evidence, investigate the claimant's records further, prompt his recollection, or pursue a description which had not been included in the disciplinary material.

4. Several findings impermissibly reflected the Tribunal's own investigation of the underlying facts rather than an assessment of the reasonableness of the employer's investigation. Its procedural criticisms similarly failed to address whether a reasonable employer could have adopted the procedure used.

5. The finding that the allegation had retrospectively been categorised as gross misconduct was not plainly perverse. Nevertheless, viewed as a whole, the decision contained insufficient reasoning and material errors of law. The Appeal Tribunal declined to determine the merits itself under section 35 of the Employment Tribunals Act 1996, since doing so would risk further substitution on incomplete evidence.

• Employment Appeal Tribunal: allowed the employer's appeal and remitted the unfair-dismissal claim for a complete rehearing before a differently constituted Employment Tribunal.
• Employment Tribunal, London (Central): held that the claimant had been unfairly dismissed, but rejected his discrimination claim. Written reasons were sent to the parties on 10 September 2012.