CRO Ports London Ltd v Wiltshire

In a misconduct dismissal, the statutory question remains whether the employer acted within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. The tribunal must assess fairness by reference to the material available to the employer when it acted, rather than its own later factual findings.

An employee’s admissions may provide reasonable grounds for the employer’s belief and may make further investigation unnecessary. The tribunal must nevertheless decide whether any conflict apparent to the employer required further enquiry. It must keep that fairness inquiry distinct from the contractual inquiry in a wrongful dismissal claim, which requires the tribunal to determine for itself whether repudiatory misconduct was proved.

The employee, a heavy-lift supervisor, was summarily dismissed after a container fell while a longstanding method of overcoming a locking-sensor problem was being used. During the employer’s internal processes he admitted knowledge of the practice and described it as dangerous, but later contended that it was longstanding, condoned and driven by operational pressure.

The East London Employment Tribunal held the dismissal unfair and wrongful. It found the employer’s investigation unreasonable, declined a reduction for contributory fault, and awarded compensation. The employer appealed against liability for unfair and wrongful dismissal and against the refusal of a contributory-fault reduction.

The central issue was whether the Tribunal had assessed unfairness by reference to the employer’s information at the time, including the employee’s admissions, rather than by reference to its own subsequent findings.

1. Appeal allowed. The findings on unfair dismissal, wrongful dismissal and contributory fault were unsafe. Both dismissal claims, and the contributory-fault issue consequential upon unfair dismissal, were remitted for a fresh hearing before a differently constituted Employment Tribunal.

2. For unfair dismissal, the Tribunal had to apply section 98(4) of the Employment Rights Act 1996 and assess the employer’s decisions against the range of reasonable responses. It was not entitled to substitute its own view of the parties’ culpability on evidence heard at the Tribunal. The employer relied materially on the employee’s admissions during the investigation and disciplinary process. Those admissions might reasonably have limited the need for further investigation, although a remaining conflict apparent to the employer could still require enquiry.

3. The Tribunal instead reasoned from its own findings about what further investigation would have uncovered. It thereby failed to address the significance of the admissions from the employer’s perspective at the relevant time. The EAT could not safely substitute its own decision because the employer might still have faced a conflict of evidence requiring investigation.

4. The contractual and statutory claims required different approaches. In wrongful dismissal, the Tribunal had to make its own findings and decide whether the employer had proved conduct amounting to a fundamental breach of contract. The reasons did not show that it had adequately addressed the employee’s supervisory role and his apparent acceptance of the safety risks. The conclusion was not necessarily perverse, but the reasoning was insufficient.

5. The Tribunal had considered the employee’s internal responses when addressing contribution, so it had not confined itself to the accident. However, it had lost sight of the potential relevance of those admissions and that issue was also remitted.

• Employment Appeal Tribunal: appeal allowed; the claims were remitted for fresh consideration by a differently constituted Employment Tribunal.
• Employment Tribunal (East London): held the employee’s dismissal unfair and wrongful, awarded compensation, and made no contributory-fault reduction. Its judgment was sent to the parties on 19 May 2014.