Disotto Food Ltd v Santos

In a misconduct dismissal, the tribunal must assess the employer’s genuine belief and the reasonableness of its decision on the facts known to the employer at dismissal. It must not re-investigate undisputed conduct, minimise its seriousness, or substitute its own view of the appropriate sanction.

Current disciplinary warnings are facts in the real world. An employer may take them into account when deciding the sanction for further misconduct. The tribunal must not treat them as irrelevant merely because they had not independently led to dismissal.

The employee, a warehouse manager, was dismissed for misconduct after failing to comply with a direct instruction to load outstanding orders that evening. The employer relied on that incident and the employee’s earlier disciplinary warnings. The Employment Tribunal held that dismissal was outside the range of reasonable responses and awarded compensation. It also found a breach of the duty to provide a statement of changes to employment particulars under section 4 of the Employment Rights Act 1996.

The employer appealed. The central issue was whether the Employment Judge had impermissibly substituted his own assessment of the employee’s conduct and the appropriate sanction for that of the employer.

1. Appeal allowed. The finding of unfair dismissal was set aside and replaced with a finding that the employee had been fairly dismissed.

2. The Employment Judge had correctly identified misconduct as the potentially fair reason and had followed the approach in British Home Stores Ltd v Burchell, [1978] IRLR 379. He found that the employee had failed to follow the direct instruction, and that both the dismissing officer and appeal decision-maker genuinely believed him guilty.

3. However, in deciding that dismissal lay outside the range of reasonable responses, the Employment Judge re-examined undisputed facts and minimised the misconduct. The employer knew that the employee had worked long hours, that only some goods remained, and that the orders were completed the next morning. Those matters did not permit the tribunal to replace the employer’s assessment of a deliberate failure to obey a direct instruction with its own.

4. The earlier warnings were relevant facts which the employer was entitled to take into account. It was irrelevant that they had not, by themselves, resulted in dismissal. The Employment Judge also erred by going behind their gravity and treating them as materially different when the employer had relied on them as part of a continuing failure to comply with instructions.

5. Applying London Ambulance Services NHS Trust v Small, [2009] IRLR 563, the tribunal had adopted an impermissible substitution mindset. The appeal succeeded on that ground, so the remaining grounds concerning procedure and compensation were not decided.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted a finding that the employee was fairly dismissed.
• Employment Tribunal, Watford: Following a hearing on 6–7 September 2012, held the dismissal unfair, found a breach of section 4 of the Employment Rights Act 1996, and made a substantial monetary award.