Choksi v Royal Mail Group Ltd

Under section 98(4) of the Employment Rights Act 1996, the statutory question is whether the employer reasonably treated the established misconduct as sufficient to dismiss. The Burchell formulation does not displace that inquiry. A reasonable investigation need not be exhaustive, but must reasonably address the case advanced by the employee.

An internal appeal may, in some circumstances, cure a substantive or procedural defect in a dismissal. It does not follow automatically that an appeal officer's more severe view of a separate allegation can make fair a dismissal which the dismissing officer would not have imposed on that allegation alone. The tribunal must examine that issue when applying the band of reasonable responses.

The claimant, a long-serving operational support manager, was summarily dismissed for gross misconduct after obscene files were found in his work cloud-storage account. He denied placing the files there and maintained that password sharing, which he admitted was prohibited, was widespread.

The dismissing officer found both the files allegation and password sharing proved. He regarded password sharing alone as warranting action short of dismissal. On a rehearing appeal, the appeal officer took the contrary view that password sharing alone would justify dismissal.

The Employment Tribunal rejected the unfair-dismissal claim. It held that dismissal for password sharing fell within the band of reasonable responses. The claimant appealed, principally challenging the treatment of the investigation and the significance of the two officers' opposing views on sanction.

1. Appeal allowed and remitted. The Employment Tribunal erred in law by failing to consider the significance, under section 98(4) of the Employment Rights Act 1996, of the fact that the dismissing officer would not have dismissed for password sharing alone whereas the appeal officer would have done so.

2. The statutory language in section 98(4), rather than an attempt to adjust the Burchell test to unusual facts, supplies the governing inquiry. The investigation had to be reasonable, not all-encompassing. It had to address the line of enquiry advanced by the employee and consider probing his case. On the facts found, however, the investigation into password sharing was not so deficient as to establish an error of law.

3. The appeal officer was not unreasonable merely because he reached a different conclusion from the dismissing officer, and he could draw on his managerial experience. The unusual issue was instead whether the claimant could be worse off for having appealed: absent the appeal, the original decision-maker would not have dismissed for password sharing, while the other allegation had not sustained a fair dismissal.

4. [1986] ICR 192 establishes that a dismissal process may include an appeal for some purposes, and an appeal may cure a defect. That principle is not automatic or universal. The tribunal had to decide whether the later, more severe assessment of password sharing could render fair the earlier dismissal, both by reference to the band of reasonable responses and to the dismissal that actually occurred.

5. The case was remitted to the same Employment Tribunal to consider those questions.

• Employment Appeal Tribunal: Allowed the appeal and remitted the case to the same Employment Tribunal.
• Employment Tribunal, London (Central): Rejected the claimant's unfair-dismissal claim after a hearing in November 2014. The written judgment was sent on 24 November 2014 and written reasons on 6 March 2015.