Ham v Beardwood Humanities College

In determining fairness under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the disciplinary process as a whole and decide whether dismissal fell within the range of reasonable responses. A remitted judgment should be read with the tribunal's earlier findings that remain undisturbed.

Where the tribunal has found that dismissal was potentially reasonable and that lesser sanctions were considered, it may conclude that dismissal was within the range even though the conduct was not gross misconduct and no prior warning was issued. A remedy assessment concerning a Polkey reduction is a distinct exercise and does not govern the liability decision.

The Claimant, a senior science teacher, was summarily dismissed for conduct comprising safeguarding, management, communication and workplace-relationship matters. None of the individual matters was treated as gross misconduct.

The Manchester Employment Tribunal originally held the dismissal unfair. On the Respondent's successful first appeal, the case was remitted to the same tribunal to decide, under section 98(4) of the Employment Rights Act 1996, whether the conduct as a whole was a sufficient reason for dismissal. The tribunal then held that dismissal was within the band of reasonable responses, albeit at its extreme end.

The Claimant appealed, contending that the tribunal had failed to address the absence of disciplinary warnings or lesser sanctions.

1. Appeal dismissed. No error of law was disclosed in the tribunal's conclusion that dismissal fell within the band of reasonable responses.

2. The remitted hearing was a limited reconsideration. Its reasons had to be read with the tribunal's detailed earlier liability judgment, except for the matters displaced on the first appeal. The tribunal was entitled to rely on its unchallenged findings that there had been a fair investigation and that the original disciplinary panel had considered and rejected alternatives to dismissal, including warnings.

3. Fairness required assessment of the disciplinary process in its totality. The appeal panel's full rehearing remedied the unfairness arising from the original panel having acted in the Claimant's absence. Its decision to uphold dismissal was not to be considered in isolation from the earlier process.

4. The tribunal had accepted the findings made at the appeal stage and correctly applied section 98(4) of the Employment Rights Act 1996 to the conduct in its totality. Its observation that dismissal lay at the extreme end of the reasonable range demonstrated that it had considered the possible range of sanctions, including warnings, before finding dismissal reasonable.

5. For completeness, the earlier remedy decision concerning a Polkey reduction and contribution did not assist the Claimant. Remedy involved a different inquiry, and that decision had proceeded on the erroneous premise that accumulated misconduct could not fairly justify dismissal. It had fallen away following the first appeal.

• Employment Appeal Tribunal: The Claimant's appeal was dismissed: [2015] UKEAT 0179_15_2310.
• Manchester Employment Tribunal: On remission following the Respondent's earlier successful appeal, the tribunal held that the dismissal was fair under section 98(4) of the Employment Rights Act 1996.
• Manchester Employment Tribunal: The original liability judgment had held the dismissal unfair. The Respondent successfully appealed, and the reasonableness-of-sanction issue was remitted to the same tribunal.