Secretary of State for Justice v Lown

In a conduct dismissal case, an Employment Tribunal must first identify the employer’s reason for dismissal and then apply the range of reasonable responses. It must assess whether the employer’s investigation, belief and grounds for belief were reasonable. It must not decide what it considers a reasonable employer ought itself to have done.

An adverse finding that the employer acted in bad faith, or lacked an honest belief, must be put to the employer’s witnesses where it is central to the decision. Otherwise the finding may render the judgment unsafe. A Polkey assessment is not confined to dismissals which are procedurally, rather than substantively, unfair.

The Claimant, a prison officer, was dismissed for gross misconduct after an incident in which he was alleged to have used unnecessary force against a prisoner. The Employment Tribunal upheld claims for unfair and wrongful dismissal. It found no contributory conduct and made no Polkey reduction.

The Secretary of State appealed the liability and remedy judgments. It contended that the Tribunal had substituted its own view of the evidence for that of the employer, made an unput allegation of bad faith, and erred concerning contributory conduct and Polkey.

The central issue was whether the Tribunal had applied the statutory test of fairness under Employment Rights Act 1996 correctly, rather than determining for itself the evidential and disciplinary outcome that should have been reached.

1. Appeals allowed. The liability and remedy judgments could not stand. The case was remitted to a differently constituted Employment Tribunal for a fresh hearing.

2. Under Employment Rights Act 1996, section 98, the Tribunal had first to determine the reason for dismissal and, in a conduct case, assess the employer’s investigation, belief and grounds for that belief. It then had to decide whether the employer’s decision fell within the range of reasonable responses. The test was not what the Tribunal considered a reasonable employer would itself have done.

3. The Tribunal’s findings indicated that it had found Governor Hawkings to have acted in bad faith and not genuinely to believe that the Claimant had committed misconduct. That conclusion was central to its reasoning. Since the allegation of bad faith had not been put to the Respondent’s witness, the Respondent had not had a fair opportunity to answer it. Applying King v Royal Bank of Canada, [2012] IRLR 280, the resulting procedural error made the decision unsafe.

4. Independently, the Tribunal had adopted a substitution mind-set. Its treatment of the evidence of the nurse, the expert, the eyewitnesses and the CCTV showed that it was setting a single evidential and procedural standard of its own. It did not ask whether the employer’s actual choices lay within the permissible range. Its own assessment of the Claimant’s conduct could be relevant to wrongful dismissal and contribution, but could not be used to replace the employer’s assessment when deciding unfair dismissal.

5. It was unnecessary to decide the remaining grounds. The EAT nevertheless indicated that the Tribunal appeared wrongly to have confined contributory conduct to the live eyewitness evidence, and wrongly to have treated substantive unfairness as excluding a Polkey reduction. The procedural/substantive distinction was unhelpful for that purpose.

6. The Respondent was awarded its appeal fees of £3,200 under Rule 34A(2A) of the EAT Rules 1993.

• Employment Appeal Tribunal: Appeals against the Employment Tribunal’s liability judgment, sent on 8 December 2014, and remedy judgment, sent on 6 March 2015, were allowed. Both judgments were set aside and the matter was remitted for a fresh hearing before a different Employment Tribunal.
• Employment Tribunal, London South: Upheld claims for unfair and wrongful dismissal, found no contributory conduct, and made no Polkey reduction.