Black Country Partnership NHS Foundation Trust v Herlock-Green

In a conduct dismissal, once the employer has shown the reason for dismissal, the tribunal must determine fairness under section 98(4) of the Employment Rights Act 1996. It must assess whether the employer had reasonable grounds for its belief following a reasonable investigation, and whether dismissal fell within the range of reasonable responses.

The tribunal must not substitute its own view of witness credibility for that of the employer, particularly where it has not heard the witnesses. It must also explain why a disciplinary hearing held in the employee’s absence was outside that range, identify any initial procedural defect, and explain why an appeal did not cure it.

The claimant, a clinical support worker, was dismissed for alleged gross misconduct after an incident involving a vulnerable service user. She did not attend the disciplinary hearing, but attended the internal appeal. The appeal officer heard the two material witnesses and upheld the dismissal.

The Birmingham Employment Tribunal held that the dismissal was unfair. It found that the employer had shown conduct as the reason for dismissal, but concluded that reliance on the witnesses’ evidence and the decision to proceed in the claimant’s absence made the dismissal unfair. It reduced compensation by 25% for the claimant’s failure to comply with the ACAS Code.

The employer appealed, contending that the Tribunal had substituted its own assessment for that of the employer, failed to apply the range of reasonable responses test, and given inadequate reasons.

1. Appeal allowed. The Employment Tribunal’s finding of unfair dismissal could not stand. The matter was remitted for a wholly fresh hearing before a differently constituted Employment Tribunal.

2. The Tribunal had found that the employer had discharged its initial burden by showing that the reason for dismissal was conduct. It therefore had to assess fairness under section 98(4) of the Employment Rights Act 1996, on a neutral burden of proof. Applying BHS v Burchell, it had to consider whether there were reasonable grounds for the employer’s belief and a reasonable investigation.

3. The Tribunal instead substituted its own evaluation of the two witnesses’ evidence. It had not heard those witnesses. It did not assess the evidence of the employer’s decision-makers, who had heard them and explained why they accepted their accounts. The Tribunal therefore failed to apply the range of reasonable responses test.

4. The seriousness of an allegation which could end an employee’s career entitled the Tribunal to expect particular care in the investigation. That did not permit it to replace the employer’s assessment of credibility with its own.

5. The Tribunal also failed to explain why proceeding with the rescheduled disciplinary hearing in the claimant’s absence was outside the range of reasonable responses. It did not identify the alleged defect at the original dismissal stage or explain why the appeal had not remedied it. These were errors of approach, not merely imperfect drafting. The deficiencies were too substantial for a Burns-Barke procedure.

6. A fresh hearing was proportionate. The claimant was ordered to pay £400 towards the employer’s appeal fees, following consideration of the discretionary costs jurisdiction and her uncertain means.

• Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the unfair-dismissal finding, and remitted the claim to a freshly constituted Employment Tribunal.
• Birmingham Employment Tribunal: Held the claimant unfairly dismissed and reduced compensation by 25% for non-compliance with the ACAS Code of Practice 2009.