Pennine Care NHS Foundation Trust v Mundangepfupfu

In a conduct dismissal, fairness under section 98(4) requires application of the Burchell questions and the range of reasonable responses test to both the employer’s decision and its investigation. The label attached to conduct is not determinative. It may nevertheless cause unfairness if it restricts the employer’s consideration of the facts, prevents proper investigation, or misleads the employee about the case to answer.

A requirement to follow a reasonable management instruction imports an objective element. A tribunal must determine whether the instruction was reasonable and must not ask whether a reasonable employer would have dismissed, rather than whether dismissal fell within the range of reasonable responses. Where procedural unfairness might have been cured by a fair process leading to dismissal, a Polkey reduction must be properly considered.

The claimant, a mental-health nurse, was dismissed for gross misconduct founded on three incidents: alleged physical assault of a patient, refusal to move to another ward after that incident, and an alleged safeguarding failure concerning a second patient.

The Manchester Employment Tribunal upheld his unfair-dismissal claim. It found flaws in the employer’s investigation of the assault and safeguarding allegations, questioned the reasonableness of the management instruction, and made no Polkey reduction. The employer appealed.

The central issues were whether the Tribunal had impermissibly substituted its own view on the three allegations and whether it had erred in refusing a Polkey reduction.

1. Appeal allowed in part. The finding of unfair dismissal remained in force. The appeal succeeded in relation to the management-instruction allegation and the refusal to consider a Polkey reduction. Those matters were remitted to the same Employment Tribunal.

2. Under Employment Rights Act 1996, section 98(4), a tribunal must consider the substance of the conduct and not merely the employer’s label. The use of a label such as physical assault does not itself determine fairness. Here, however, the Tribunal permissibly found that treating any contact with a patient’s neck as physical assault had constrained the employer’s consideration of the surrounding circumstances. It could also have affected the scope of the investigation and the claimant’s response to the charge. The Tribunal likewise permissibly found that the employer had not adequately investigated the substance of the claimant’s explanation on the safeguarding allegation.

3. The Tribunal’s conclusion on the alleged refusal of a reasonable management instruction was unsafe. Whether an instruction is reasonable contains an objective element; it is not solely for the employer to determine. The Tribunal had to decide that issue, rather than describe it as questionable. It also applied the wrong sanction test by asking whether a reasonable employer would have dismissed. The proper question was whether dismissal fell within the range of reasonable responses.

4. The Tribunal’s finding of unfair dismissal nevertheless stood because the employer had relied on all three allegations collectively, and the findings of unfairness on two allegations remained. The Tribunal had, however, accepted that individual incidents could matter at remedy. It therefore had to consider whether a fair investigation, correct framing of the allegations, or a fair finding on an individual incident might have led to a fair dismissal. Its unexplained refusal of any Polkey reduction was inconsistent with that approach.

• Employment Appeal Tribunal: Appeal allowed in part. The unfair-dismissal finding was maintained, but the management-instruction and Polkey issues were remitted to the same Tribunal.
• Manchester Employment Tribunal: On 22 December 2014, upheld the claimant’s unfair-dismissal claim, found no Polkey reduction appropriate, and reduced compensation by 25% for contributory conduct.