Ham v The Governing Body of Beardwood Humanities College

In a conduct-based unfair-dismissal claim, the tribunal must assess whether dismissal fell within the range of reasonable responses, considering the employee’s conduct in its totality and keeping lesser sanctions, including warnings, in view. The absence of prior warnings does not itself make dismissal unreasonable. A disciplinary process must be assessed as a whole. Findings made at the remedy stage, including predictions about what would have happened if warnings had been given, do not determine liability and cannot undermine a later liability decision where the earlier liability findings have been set aside. A remitted tribunal may rely on surviving earlier reasoning and need not repeat every reason if the basis of its conclusion is sufficiently clear.

The appellant, a long-serving head of science, was dismissed for conduct after an internal appeal panel upheld three charges fully and one partly. An Employment Tribunal initially found the dismissal unfair, but the Employment Appeal Tribunal allowed the employer’s appeal because the tribunal had treated the conduct as requiring individual or cumulative gross misconduct and had taken account of the college’s anticipated closure. The case was remitted on the reasonableness of dismissal as a sanction. The Employment Tribunal then found dismissal fair, albeit at the extreme end of the range. The Employment Appeal Tribunal, in UKEAT/0179/15/MC, dismissed the appellant’s further appeal. The central issue before the Court of Appeal was whether the tribunal had failed to consider the absence of prior warnings or had been bound by observations in its earlier remedy judgment.

1. Appeal dismissed. The Court of Appeal unanimously upheld the Employment Appeal Tribunal’s decision and the remitted Employment Tribunal’s conclusion that dismissal fell within the range of reasonable responses, although at its extreme end.
2. Under section 98(4) of the Employment Rights Act 1996, the question was whether the employer’s decision to dismiss for conduct was reasonable. The assessment concerned the employee’s conduct in its totality. It was not necessary to determine whether each individual act, separately or cumulatively, amounted to gross misconduct. An employment tribunal will have in mind lesser sanctions, including a warning or final written warning, but the absence of prior warnings does not establish that dismissal was outside the permissible range.
3. The disciplinary process had to be considered as a whole. The remitted tribunal was entitled to rely on the earlier findings that survived the first appeal and to read its short remission decision together with the original liability judgment. The appeal panel’s findings of repeated failures to follow reasonable management requests, unreasonable communications and a breakdown in working relationships provided a sufficient basis for the tribunal’s conclusion. It was not required to set out every aspect of its reasoning again.
4. The earlier remedy judgment could not be used to impugn the liability decision. A remedy exercise, including a Polkey assessment or consideration of contribution under section 123(6) of the Employment Rights Act 1996, requires the tribunal to form its own view of what would or should have happened. Liability requires assessment of the reasonableness of the employer’s decision at the time. The remedy judgment was also founded on liability conclusions later set aside by the Employment Appeal Tribunal. It was therefore legally impermissible to treat that judgment as controlling the remitted liability issue.
5. The reasoning in the remitted decision was compressed but adequate. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the Employment Appeal Tribunal’s decision.
• Employment Appeal Tribunal: HHJ Eady QC dismissed the appellant’s appeal against the remitted finding that the dismissal was fair, in UKEAT/0179/15/MC.
• Employment Tribunal on remission: reconsidered the reasonableness of dismissal as a sanction and found the dismissal fair, although at the extreme end of the range.
• Employment Appeal Tribunal on the employer’s first appeal: allowed the appeal against the initial unfair-dismissal finding and remitted the issue of reasonableness of sanction.
• Employment Tribunal: initially found the dismissal unfair because the original disciplinary decision had been made in the appellant’s absence and for the reasons stated in its liability judgment.