Zaki v Marston's Plc

An Employment Tribunal determining contributory conduct must make its own clear findings of fact about the employee’s conduct. A finding that the employer reasonably rejected the employee’s account does not itself determine factual contribution. The Tribunal must also explain the basis for the percentage reduction.

A wrongful-dismissal claim requires findings as to whether the alleged misconduct occurred and, if so, whether it amounted to gross misconduct entitling summary termination at common law. Where these findings and reasons are absent, the proper course may be remittal for reconsideration. A Burns-Barke reference is not necessarily proportionate once the appeal has reached a full hearing and the parties should be able to make submissions on the remitted issues.

The claimant, formerly employed as a head chef, was summarily dismissed. The Employment Tribunal upheld his ordinary unfair-dismissal complaint but made a 75% Polkey reduction and a 75% reduction for contributory conduct. It dismissed his claim for wrongful dismissal.

The Tribunal found procedural unfairness, but had treated the employer’s belief in misconduct as reasonable. It did not make its own findings of fact about the alleged conduct for contribution purposes, explain the 75% figure, or give reasons for dismissing the wrongful-dismissal claim.

The claimant appealed against those two aspects of the Tribunal’s reserved judgment dated 11 October 2013. The central issues were whether the reasons disclosed errors of law and, if so, whether a Burns-Barke reference or remittal was the appropriate disposal.

1. Appeal allowed. The Tribunal’s findings that the employer reasonably believed the claimant had committed misconduct, and that dismissal was within the range of reasonable responses, did not amount to its own factual findings on the balance of probabilities for contributory conduct.

2. Contribution under Employment Rights Act 1996 required the Tribunal to determine what the claimant in fact did on 26 and 27 February. Its reasons contained a material gap because they did not make those findings. The Tribunal also gave no explanation for selecting a 75% reduction. The guidance in London Ambulance Service v Small, [2009] IRLR 563, supported keeping findings relevant to distinct issues separate where their legal elements differ.

3. The dismissal of the wrongful-dismissal claim could not stand. The Tribunal gave no legal self-direction and no reasons addressing whether the alleged misconduct had been proved as fact and, if proved, amounted to gross misconduct entitling the respondent summarily to terminate at common law. Its observations about what a reasonable employer could conclude did not answer that question.

4. A Burns-Barke reference was not proportionate. The appeal had reached a full hearing, and a reference would neither avoid remittal nor permit the parties to make submissions on any answers. The court took account of the caution expressed in Barke v Seetec Business Technology Centre Ltd, [2005] EWCA Civ 578, and Woodhouse School v Webster, [2009] IRLR 568.

5. The issues of contribution and wrongful dismissal only were remitted to the same Tribunal, chaired by Employment Judge Hyde, at the remedy hearing. No further evidence could be adduced; the respondent could not call Mr McGrath. The remitted hearing was to proceed on written and oral submissions only, consistently with the remittal guidance considered in Jafri v Lincoln College, [2014] IRLR 544, and Burrell v Micheldever Tyre Services Ltd, [2014] EWCA Civ 716.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted contribution and wrongful dismissal only to the same Tribunal.
• Employment Tribunal (London South): In a reserved judgment dated 11 October 2013, upheld ordinary unfair dismissal subject to 75% Polkey and contribution reductions, dismissed wrongful dismissal, and rejected the whistleblowing claims.