Devai v London South Bank University

An appeal from an Employment Tribunal lies only on a point of law. Appellate courts must not re-weigh oral evidence or substitute their view of credibility. In an unfair-dismissal case based on conduct, the Tribunal need not recite the familiar Burchell test if its findings show that it addressed reasonable belief, reasonable investigation and reasonable grounds. A separate out-of-time claim concerning detriment for protected disclosures does not prevent those disclosures being relied on as the alleged reason for dismissal. Gross misconduct does not make dismissal automatically fair; the statutory reasonableness test still applies. Where deliberate conduct seriously undermines professional relationships and trust, dismissal may fall within the range of reasonable responses.

Dr Devai, a senior lecturer, was dismissed after disciplinary findings concerning his supervision of a PhD student and correspondence said to undermine management. The Employment Tribunal rejected his unfair-dismissal claim, finding that the reason was conduct, not protected disclosures, and that dismissal was fair. The Employment Appeal Tribunal dismissed his appeal, and permission was refused on paper by Lewison LJ. The renewed application alleged errors concerning the Burchell test, the investigation and email evidence, the reason for dismissal, protected disclosures and gross misconduct. The central question was whether the Tribunal disclosed any arguable error of law.

Application refused. Bean LJ held that the renewed application disclosed no arguable point of law.

1. An appeal from an Employment Tribunal lies only on a point of law. An appellate court may intervene where there was no evidence to support a conclusion, but it cannot revisit a finding based on oral evidence or substitute its own view of credibility and fact. The complaints about who sent the email and the disciplinary panel’s assessment of it were factual complaints.
2. The Employment Tribunal did not need to recite the familiar test in British Home Stores v Burchell. Its findings showed that it had addressed reasonable belief in the alleged facts, reasonable investigation and reasonable grounds for the conclusion. The reference to the reasons stated in the disciplinary letters was also a sufficient finding that the reason for dismissal was conduct as particularised in those letters.
3. The protected-disclosure allegation had been properly considered. Although the separate claim for detriment short of dismissal under section 47B had been withdrawn as out of time, the alleged disclosures could still be relied on as the true or principal reason for dismissal. The Tribunal rejected that factual case, so the disclosures had no further relevance to the unfair-dismissal claim.
4. The investigation was capable of being found reasonable. The employee’s computer had been examined, and the decision maker had a report supporting the conclusion that the email had been sent from it. The Employment Tribunal was entitled to accept that conclusion and to make its own factual finding.
5. The Court distinguished the logical error identified in Brito-Babapulle v Ealing NHS Trust UKEAT 0358/12/1406: the Tribunal here had not treated gross misconduct as automatically making dismissal reasonable. The statutory reasonableness test remained controlling. The discussion in Burdett v Aviva Employment Services Ltd UKEAT/0439/13/JOJ, concerning culpability in a different factual context, did not assist the applicant. Given the finding that the email was deliberate and seriously undermined professional relationships and trust, dismissal was within the range of reasonable responses.

The renewed application for permission to appeal was therefore refused.

1. Court of Appeal (Civil Division) — [2015] EWCA Civ 807: Bean LJ refused the renewed application for permission to appeal.
2. Employment Appeal Tribunal — Judge Clark dismissed the appeal at the rule 3(7) sift. Singh J reached the same conclusion after an oral rule 3(10) hearing on 4 June 2014.
3. Employment Tribunal — Employment Judge Baron, sitting alone, rejected the unfair-dismissal claim in a reserved judgment dated 27 September 2013. The Tribunal found that the reason for dismissal was conduct, not protected disclosures, and that dismissal was fair.