Tarzi v Securitas Security Services Ltd

An Employment Appeal Tribunal will not re-determine facts or substitute its own view for that of an Employment Tribunal under the guise of a perversity challenge. A finding that an employer took reasonable steps to seek alternative employment before dismissal will stand where it was a permissible conclusion on the evidence.

In a dismissal for some other substantial reason following a client-site exclusion, fairness may be supported where no suitable alternative role was shown to have been available before dismissal or the internal appeal.

The claimant, a security officer at Gatwick Airport, was banned from the site by the respondent's client after an incident. The respondent unsuccessfully sought to have the ban lifted, dismissed a misconduct charge, and then dismissed the claimant for some other substantial reason because it said that no alternative employment was available.

Employment Judge Martin held the dismissal fair and determined the money claims. The Employment Appeal Tribunal permitted the appeal to proceed on the resolved money issues and on the limited question whether the respondent had reasonably searched for alternative work. The central issue was whether the Tribunal was entitled to find that no alternative work was available.

1. Appeal dismissed. The money-claim ground had been resolved because the claimant had received the notice pay and holiday pay due.

2. The remaining challenge was, in substance, a perversity challenge to the Employment Tribunal's finding that the respondent had not failed to take reasonable steps to find alternative employment. Questions of fact were for the Employment Tribunal, and the Appeal Tribunal's role was confined to correcting errors of law.

3. The claimant did not identify a role that he could have performed and that was available before dismissal or, at the latest, before his unsuccessful internal appeal. His later application for a Brighton post and a possible Brighton vacancy did not establish such available alternative work. His previous exclusion from sites occupied by another substantial customer was also relevant on the evidence.

4. Reading the Tribunal's reasons as a whole, its conclusion was not perverse. It was a permissible finding consistent with the evidence. Applying the restraint described in Bowater v NW London Hospitals [2011] IRLR 331, the Appeal Tribunal could not substitute its own judgment. There was therefore no error of law in the finding that reasonable steps had been taken, or in the conclusion that the dismissal was fair.

• Employment Appeal Tribunal: dismissed the claimant's appeal and upheld the finding that dismissal for some other substantial reason was fair.

• Employment Tribunal, London (South): Employment Judge Martin, by judgment dated 7 May 2013, held the dismissal fair, dismissed the notice-pay claim as paid, and awarded £560 holiday pay.