Phiri v Surrey & Borders Partnership NHS Foundation Trust

In a wrongful-dismissal claim, the tribunal must determine for itself whether the employee committed a repudiatory breach justifying summary dismissal. It cannot decide that issue merely by finding that the employer reasonably believed misconduct had occurred for unfair-dismissal purposes.

Where the issue turns on credibility, reasons must show that the tribunal independently evaluated the evidence. If it prefers untested written accounts to sworn evidence tested in cross-examination, it must explain why. A correct statement of the legal test does not cure a later misdirection or an absence of findings on the decisive factual issue.

The Employment Tribunal dismissed the claimant's claims for unfair dismissal and wrongful dismissal following his summary dismissal for alleged threatening remarks to a vulnerable patient.

The Employment Appeal Tribunal appeal proceeded only on the wrongful-dismissal claim. The central issue was whether the Employment Tribunal had made and adequately reasoned its own finding that the claimant made the alleged remark, and had applied the common-law test for summary dismissal rather than the unfair-dismissal reasonable-belief test.

1. Appeal allowed. The Employment Tribunal's dismissal of the wrongful-dismissal claim could not stand. The case was remitted for a rehearing before a differently constituted Employment Tribunal.

2. Wrongful dismissal required the Employment Tribunal to decide for itself whether the claimant had committed a repudiatory breach of contract which entitled the employer to dismiss summarily. The employer's reasonable belief in misconduct, and the reasonableness of its investigation, were material to unfair dismissal but did not determine the contractual claim.

3. The Employment Tribunal had correctly stated that it had to decide whether the claimant committed a repudiatory breach. However, its later statement that the employer was entitled to believe the claimant guilty of misconduct was a clear misdirection. That error undermined confidence that the tribunal had applied its earlier correct self-direction.

4. The alleged remark was the decisive issue and depended on the relative credibility of the claimant and two colleagues. The reasons contained no clear finding that the claimant made the remark. They repeatedly described it as alleged, while the apparent finding in later paragraphs assumed rather than explained the necessary factual conclusion.

5. Nor did the reasons show an independent evaluation of the evidence. The two colleagues did not give live evidence before the Employment Tribunal. Even if it could have upheld the employer's defence without their live evidence, the tribunal had at least to explain why it gave greater weight to untested written accounts than to the claimant's sworn and cross-examined evidence. Its approach instead appeared to adopt the employer's credibility assessment.

6. The outcome on a proper rehearing was not inevitable. Fairness also favoured remission to a different tribunal, given the first tribunal's implied finding without hearing live evidence from the two accusing witnesses.

• Employment Appeal Tribunal: Allowed the appeal on wrongful dismissal and remitted that claim for rehearing before a different Employment Tribunal.
• Employment Tribunal: On 8 September 2014, dismissed the claimant's unfair-dismissal and wrongful-dismissal claims.