Trye v UKME (UK Mission Enterprise Ltd)

Under section 98(4) of the Employment Rights Act 1996, the question is whether the employer acted within the band of reasonable responses. The tribunal must not substitute its own view of the appropriate sanction.

Conduct need not amount to gross misconduct or a repudiatory breach at common law before dismissal may be fair. A valid final written warning is relevant to the statutory assessment. Where it remains current, further misconduct will usually, save exceptionally, justify dismissal. An appellate challenge which merely invites a fresh factual assessment, without identifying an error of law, cannot succeed.

The Claimant appealed against the unanimous decision of the London (Central) Employment Tribunal, sent to the parties on 26 May 2015, dismissing her claims for race discrimination and unfair dismissal.

She had received a final written warning. While it was current, the Respondent dismissed her summarily after finding that she had failed to report continuing absence after her medical certificate expired and had failed to respond adequately to management contact. The Employment Tribunal found that the Respondent had a genuine belief on reasonable grounds, had investigated reasonably, and had dismissed within the range of reasonable responses.

Permission was confined to whether the Employment Tribunal had properly assessed the reasonableness of dismissal, given that the immediate absence-related conduct was not regarded as very serious in itself.

1. Appeal dismissed. The Employment Tribunal made no error of law in concluding that the dismissal was fair.

2. The governing inquiry was section 98(4) of the Employment Rights Act 1996. It concerned the reasonableness of the employer's response, not whether the Employment Tribunal or the Appeal Tribunal would have selected dismissal. The Employment Tribunal had correctly directed itself by reference to the Burchell questions and the band of reasonable responses.

3. It was wrong to contend that the employee's conduct had to amount to gross misconduct before dismissal could be fair. Statutory fairness does not turn on whether the conduct constituted a repudiatory breach at common law, nor on the distinction between summary dismissal and dismissal on notice.

4. The final written warning was valid and current when the relevant conduct occurred. The Employment Tribunal was entitled to assess the conduct in its full context, including that warning, the prior failure to follow procedures, the inconsistent explanations, and the Claimant's continuing assertion that she had done nothing wrong. Although the failure concerning the medical certificate was not very serious in isolation, the Employment Tribunal had not treated it in isolation.

5. The Employment Tribunal's conclusions at paragraphs 67 to 69 were a summary to be read with its earlier findings, including paragraph 64. The appeal grounds instead sought an impermissible substitution of a fresh factual assessment. No proper basis existed for finding that a reasonably directed Employment Tribunal could not have held dismissal to be within the range of reasonable responses.

• Employment Appeal Tribunal: appeal dismissed: [2016] UKEAT 0066_16_1207.
• Employment Tribunal, London (Central): unanimous decision, sent on 26 May 2015, dismissing the claims of unfair dismissal and race discrimination; no citation was stated in the judgment.