The Police And Crime Commissioner For Devon & Cornwall v Naldrett (Contract of Employment : Notice and pay in lieu)

A contractual claim for notice pay requires the tribunal to decide what the employee actually did. A reasonable investigation and a genuine, reasonable belief may establish fairness for unfair-dismissal purposes, but do not by themselves establish gross misconduct justifying summary dismissal.

Where an employer relies on indirect or written evidence, the tribunal must give sufficient reasons to show how it evaluated that evidence, the employee’s oral account, relevant inconsistencies and the probabilities. A conclusion based simply on the absence of direct evidence from the employer will be inadequately reasoned if it does not reveal that evaluation.

The claimant, a Police Community Support Officer, was dismissed after an allegation that he had masturbated in a public car park. He denied the allegation. The Employment Tribunal held that the dismissal was fair but awarded six weeks’ notice pay and pension contributions because it was not satisfied that he had committed the alleged gross misconduct.

The employer appealed only the contractual finding. It accepted that wrongful dismissal required the tribunal to determine the facts for itself, but contended that the tribunal had failed to explain its treatment of indirect evidence, other evidence and alleged inconsistencies in the claimant’s accounts.

1. Appeal allowed. The Employment Tribunal correctly recognised that unfair dismissal and contractual notice pay involved different inquiries. For unfair dismissal, the question is ordinarily whether the employer held a genuine and reasonable belief following a reasonable investigation. For wrongful dismissal, the tribunal must determine whether the employee in fact committed gross misconduct entitling summary dismissal.

2. The Employment Judge’s self-direction that the employer had to prove gross misconduct on the balance of probabilities was correct. However, the reasons did not show that the Judge had applied that direction. The conclusion appeared to follow from the facts that the claimant alone gave direct oral evidence and no witness attended to contradict him.

3. The employer was entitled to have its indirect and written evidence evaluated. The reasons did not disclose what weight, if any, had been given to that material, the evidence concerning the complainant and another motorist, the claimant’s admissions, the alleged inconsistencies in his accounts, or the inherent probabilities. Brief reasons were permissible, but they had to enable the losing party to understand why its evidence had not displaced the claimant’s account.

4. The decisions in Kingston and Manning did not assist because they illustrated processes dependent on their own facts. They did not cure the absence of adequate reasoning in this case.

5. The wrongful-dismissal and notice-pay issue was remitted to the same Employment Judge. No further evidence was to be received. The parties could make written submissions on the evidence already heard, after which the Judge was to give a fresh written decision. No order was made concerning appeal fees.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the contractual notice-pay issue to the same Employment Judge ([2015] UKEAT 0401_14_1202).
• Employment Tribunal: Employment Judge Carstairs, sitting alone at Exeter, held on 20 March 2014 (notified 26 March 2014) that the dismissal was fair but that the claimant had been dismissed in breach of contract and was entitled to notice pay and pension contributions.