Mears Ltd v Brockman

In a conduct-dismissal case, an Employment Tribunal must assess the employer’s actual belief, the grounds on which that belief was held, and the investigation undertaken. It must not decide unfair-dismissal liability by substituting its own findings of what the employee in fact did or knew.

Under section 98(4) of the Employment Rights Act, the question is whether the employer’s decision fell within the range of reasonable responses. The Tribunal must assess mitigating circumstances by reference to the material and conclusions available to the employer. A finding that a lesser warning was reasonable does not necessarily make dismissal unreasonable, since both may fall within that range.

The claimant, a maintenance operative, was summarily dismissed after entering a flat and a bathroom which the employer considered to have been marked as hazardous because of asbestos. The Reading Employment Tribunal upheld claims for wrongful dismissal and unfair dismissal. It found that the claimant had not knowingly entered a hazardous area and held that the employer lacked reasonable grounds for believing that he had done so knowingly. It also held that dismissal was outside the range of reasonable responses.

The employer appealed only the unfair-dismissal finding. The central issue was whether the Employment Judge had substituted her own factual conclusions and view of sanction for the employer’s reasonable belief and decision-making.

1. Appeal allowed. The unfair-dismissal decision was unsafe because the Employment Judge had substituted her own conclusions about the events for the assessment required by section 98(4) of the Employment Rights Act.

2. The employer’s belief was that the claimant had knowingly entered the hazardous area. The Tribunal was required to ask whether the employer had reasonable grounds for that belief on the evidence which it had accepted or rejected. Instead, it concentrated on its own finding that the claimant had not seen the asbestos warnings. It did not analyse the employer’s reliance on the warning tape, the asbestos warning, and the dismissing officer’s disbelief of the claimant’s account.

3. The Employment Judge was entitled, and for the wrongful-dismissal claim obliged, to make findings about what actually occurred. Placing those findings in a common factual section was not an error of law. She nevertheless had to keep separate the contractual question of actual misconduct from the unfair-dismissal question of the employer’s reasonable belief.

4. The same error affected sanction. The Judge treated her own factual findings, including her view of the mitigating circumstances and the employer’s failings, as the basis for deciding whether dismissal was reasonable. The finding that a final written warning was within the range while dismissal was outside it was not necessarily decisive, but reinforced the conclusion that she had adopted a substitution approach.

5. The unfair-dismissal claim was remitted to a freshly constituted Employment Tribunal. Remittal to the same Judge could undermine confidence in the result after she had formed and used her own view of the facts. No costs order was made under Rule 34A(2)(a) of the EAT Rules 1993, having regard to the abandoned perversity ground, the claimant’s limited means, and possible fee remission.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the unfair-dismissal claim to a freshly constituted Employment Tribunal.
• Reading Employment Tribunal: On 24 February 2014, with judgment sent on 18 March 2014, upheld the claimant’s unfair-dismissal and wrongful-dismissal claims. The wrongful-dismissal and remedy decisions were not appealed.