Ethnic Minorities Law Centre v Deol

In a conduct dismissal, the tribunal must apply the range of reasonable responses test. It must assess whether the employer had reasonable grounds for its belief, carried out a reasonable investigation, and acted reasonably in dismissing. It must not substitute its own view for that of a reasonable employer.

Procedural fairness may nevertheless be decisive. A disciplinary hearing is unfair where its chair has formed adverse views and cannot approach the matter with an open mind. A later appeal will not cure that defect if it is only a superficial review and fails to investigate material allegations critically.

The claimant, an office manager, was summarily dismissed following allegations concerning his other employment, sickness absence, flexible-working request, leave, waste disposal and insubordination.

The Employment Tribunal found that conduct was a potentially fair reason but held the dismissal unfair. It found that the disciplinary chair had already formed adverse views about the claimant and that the appeal panel had not critically explored important evidence. Remedy, including any contributory conduct, was reserved.

The respondent appealed, alleging substitution of the Tribunal’s view, inadequate analysis, error concerning the appeal, failure to consider another substantial reason, and perversity. The central issue was whether the Tribunal had permissibly found the dismissal procedurally and substantively unfair under Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal directed itself by reference to the proper test for a conduct dismissal. It considered reasonable grounds, reasonable investigation and the range of reasonable responses, while recognising the need to avoid substituting its own view. Its conclusions were open to it and disclosed no error of law.

2. The Tribunal was entitled to find that the employer had too readily treated suspicion about sickness absence and other employment as established wrongdoing. It had a factual basis for its conclusion that the investigation was inadequate. The appellate tribunal rejected the contention that the Tribunal had overlooked the employer’s belief or impermissibly decided for itself what the claimant had done.

3. The disciplinary process was independently unfair. The chair had become disillusioned with the claimant, had formed adverse views, and had participated in obtaining information for the investigation. The Tribunal was entitled to conclude that he could not approach the disciplinary hearing with an open mind. The involvement of a less senior fellow panel member did not cure that defect.

4. The appeal did not cure the unfairness. It was a review rather than a rehearing and the Tribunal was entitled to find that it did not critically investigate significant matters, including the evidence relevant to the allegation that the claimant worked elsewhere while absent through sickness.

5. Although the Tribunal made adverse findings about the claimant’s lack of transparency, it was entitled to accept the core of his evidence and reserve contributory conduct for remedy. The findings on procedural unfairness were sufficient to establish unfair dismissal under Employment Rights Act 1996.

• Employment Appeal Tribunal: The respondent’s appeal was dismissed: [2015] UKEAT 0022_14_2402.
• Employment Tribunal: The claimant’s unfair-dismissal claim succeeded. Remedy, including contribution, was reserved to a further hearing.