Elijah-Jacobs v South West London & St Georges Mental Health Trust

In a conduct dismissal case, the adequacy of an employer’s investigation falls to be assessed within the range of reasonable responses. The seriousness and potentially career-ending effect of an allegation against a carer of vulnerable people requires careful scrutiny, but does not impose a fixed or heightened investigatory standard.

An appeal tribunal may not substitute its own assessment for that of the employment tribunal. Where the tribunal directed itself correctly, intervention is justified only if its conclusion lacks an evidential basis or is perverse. An employment tribunal is also not required to determine a distinct discrimination allegation which was not advanced as an issue before it.

The Claimant, a mental-health nurse, was summarily dismissed after allegations that he assaulted a vulnerable service user and mimicked another service user. He denied the allegations. His internal appeal was unsuccessful.

The Employment Tribunal dismissed complaints including ordinary unfair dismissal under the Employment Rights Act 1996 and direct race discrimination. At a preliminary appeal hearing, the protected-disclosure challenge was dismissed. The remaining appeal concerned the reasonableness of the Respondent’s investigation, the scope of the agreed race-discrimination issues, and the adequacy of the Tribunal’s reasons.

The central questions were whether the Tribunal permissibly found the investigation reasonable and whether it failed to decide a freestanding allegation concerning the continuation of suspension.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the Respondent’s investigation fell within the range of reasonable responses. It had considered the Claimant’s criticisms, including the alleged failure to interview further witnesses, the evidence concerning identification, access to records, and the composition of the disciplinary panel.

2. The Tribunal had recognised both the potentially devastating effect of summary dismissal on the Claimant’s career and the Respondent’s duties towards vulnerable service users. On the evidence, including Dr Miller’s evidence, its conclusions that there were reasonable grounds for belief in misconduct and that dismissal was reasonable were not perverse.

3. The EAT’s function was confined to correcting errors of law. Even if its members might have reached another conclusion at first instance, it could not substitute that view for the fact-finding Tribunal’s assessment. The authorities concerning serious allegations against carers did not alter that appellate limit.

4. The alleged difference between the continuation of the Claimant’s suspension and Mr Cahill’s suspension was not a third, freestanding race-discrimination allegation in the agreed list of issues. The Tribunal could not be criticised for failing to decide an issue which had not been argued before it. In any event, the Respondent had identified a non-racial reason for the difference in treatment.

5. Read as a whole, the Tribunal’s reasons adequately explained why the parties had won and lost. There was therefore no basis to set aside its decision for inadequate reasons.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0379_14_1208.
• Employment Tribunal (London South): Reserved judgment promulgated on 10 June 2014 dismissing the Claimant’s protected-disclosure, unfair-dismissal, direct-discrimination and harassment complaints.