Ham v The Governing Body of Beardwood Humanities College

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's decision upholding the Employment Tribunal's remitted finding that dismissal for conduct was within the band of reasonable responses. The key legal principle was that, for unfair dismissal under section 98(4) of the Employment Rights Act 1996, the tribunal must assess whether the employee's conduct in its totality amounted to a sufficient reason for dismissal rather than whether individual acts constituted "gross misconduct". The Court held that the Employment Tribunal was entitled to treat the appeal panel's rejection of lesser sanctions (including warnings) as part of the overall disciplinary process and that remarks in the earlier remedies judgment about what might have happened had warnings been given related to the assessment of compensation rather than a finding that absence of warnings made dismissal per se unfair.

Background and facts:

• The appellant was employed as Head/Director of Science from 1994 until summary dismissal in May 2011 following disciplinary proceedings where four charges were found proved. An internal appeal upheld three charges in full and one in part and refused the appeal against dismissal.
• The appellant brought claims of detriment and ordinary unfair dismissal under section 98 of the Employment Rights Act 1996; the detriment claim was rejected by the Employment Tribunal.

Procedural history:

• An Employment Tribunal found the original decision to dismiss unfair because it had been taken in the appellant's absence and awarded remedy including a basic and compensatory award. The remedies judgment contained paragraphs saying that, had warnings been given or a performance management process followed, the claimant would likely have remained until the planned closure and redundancy date.
• The employer appealed to the Employment Appeal Tribunal (EAT), which allowed the employer's appeal on liability, holding that the ET had applied an erroneous approach by focusing on whether individual acts amounted to "gross misconduct" rather than whether the conduct in totality was a sufficient reason under section 98(4); the EAT remitted the single issue of the reasonableness of the sanction to the ET for reconsideration.
• On the remitted hearing the ET concluded that dismissal was within the range of reasonable responses, albeit at its extreme end. The EAT (HHJ Eady QC) refused the appellant's appeal against that conclusion. The appellant then appealed to the Court of Appeal.

Nature of the claim and relief sought:

• The principal claim was ordinary unfair dismissal and the remedies sought included compensatory awards and a Polkey reduction/consideration of contributory conduct.

Issues before the Court of Appeal and the tribunal:

Whether the ET on remitter had erred in law by failing to take into account the absence of prior warnings (as suggested in its earlier remedies judgment) when deciding whether dismissal was within the band of reasonable responses under section 98(4); and whether the remedies judgment's statements showed the ET considered dismissal unreasonable as a matter of liability.

Court's reasoning:

• The Court of Appeal held that the remedies judgment's comments about what might have happened with warnings were part of the remedies exercise assessing loss and causation and did not amount to a liability finding that dismissal was per se unreasonable for lack of prior warnings.
• The ET on remitter was entitled to take account of the full disciplinary process, including the appeal panel's conclusions rejecting lesser sanctions, and to assess whether the employer's decision to dismiss was within the range of reasonable responses. The EAT's earlier guidance that conduct must be considered in its totality was followed and the remitted ET had proceeded lawfully.
• The Court found no material failure of reasoning on the remitted decision and dismissed the appeal.

Appeal dismissed. The Court of Appeal agreed with the EAT and Employment Tribunal that the question under section 98(4) is whether the employee's conduct in its totality provided a sufficient reason for dismissal; remarks in the earlier remedies judgment about warnings related to compensation assessment and did not require the ET on remitter to treat absence of warnings as determinative of liability. The ET was entitled to conclude dismissal was within the band of reasonable responses.

Employment Tribunal (Manchester) liability hearing August 2012 and remedy hearing March 2013; Employer's appeal to the Employment Appeal Tribunal allowed in part and remitted for re-hearing on reasonableness of sanction (EAT hearing 4 April 2014); Remitted Employment Tribunal reconsideration decision 3 September 2014 finding dismissal fair; EAT (HHJ Eady QC) dismissed appellant's further appeal (UKEAT/0179/15/MC). Appeal to the Court of Appeal in this judgment [2017] EWCA Civ 1629 dismissed.