London Borough of Wandsworth v CRW

An Employment Tribunal cannot reach irreconcilable conclusions about the reason or principal reason for a dismissal. A finding that a protected disclosure was that reason, making the dismissal automatically unfair under Employment Rights Act 1996, cannot stand with a finding that the same dismissal was fair because its reason was conduct under the same Act.

A direct race-discrimination finding may coexist with a finding that conduct was the reason for dismissal, since the statutory inquiries differ. However, the Tribunal must give adequate reasons identifying the aspect of the decision-making process tainted by race and explaining any apparent inconsistency in its findings.

The Claimant, a black residential worker caring for severely disabled young people, was summarily dismissed for alleged gross misconduct concerning safeguarding failures. She compared her treatment with that of a white senior colleague, SRW, who received a written warning after disciplinary allegations concerning vulnerable young people.

The Employment Tribunal dismissed her ordinary unfair-dismissal claim under Employment Rights Act 1996, but upheld claims for automatic unfair dismissal for protected disclosures and direct race discrimination. The local authority appealed.

The central issues were whether the Tribunal had decided unpleaded discrimination matters, and whether its conclusions on the reasons for dismissal and race discrimination were legally coherent and adequately reasoned.

1. Appeal allowed. The Employment Tribunal's decision was set aside in its entirety and all three claims were remitted for a fresh hearing before a differently constituted Tribunal.

2. The Tribunal had not exceeded the pleaded race-discrimination case. The agreed issues concerned delay in investigating the comparator and the difference in dismissal sanction. Those issues necessarily required examination of the wider disciplinary processes leading to the Claimant's dismissal and the comparator's warning. The Respondent had fair notice and could not complain of adverse findings where it chose not to call evidence addressing those matters.

3. The Tribunal's findings under Employment Rights Act 1996 were irreconcilable. Having found that the protected disclosures were the principal reason for the serious charge and dismissal, the dismissal was automatically unfair under section 103A and no further inquiry into its fairness was required. Its further finding that conduct was the reason or principal reason and that the dismissal was fair under section 98(2) could not stand alongside that conclusion.

4. The race-discrimination claim involved a different statutory inquiry. A finding that misconduct was the reason or principal reason for dismissal did not necessarily preclude race from having influenced part of the employer's decision-making. Yet the Tribunal had accepted matters capable of explaining the difference in treatment, including the Claimant's failure to acknowledge wrongdoing, without explaining why they did not answer the burden under section 136(2) of Equality Act 2010. It had to identify which decision or stage was tainted by race and why. Its reasons did not permit either party to understand that basis.

5. Applying the remittal factors in Sinclair Roche & Temperley v Heard, the fundamental flaws in the reasoning outweighed the disadvantages of a fresh hearing.

• Employment Appeal Tribunal: Allowed the local authority's appeal, set aside the Employment Tribunal's decision in full, and remitted all claims for a fresh hearing.
• London (South) Employment Tribunal: Judgment sent on 2 July 2015. It dismissed the ordinary unfair-dismissal complaint but upheld claims for automatic unfair dismissal for protected disclosures and direct race discrimination.