Secretary of State for Justice v Pinkerton

In a misconduct dismissal case, an Employment Tribunal must apply the band of reasonable responses test. It must assess whether the employer could reasonably reach its conclusion on the investigation and evidence available, rather than substitute its own assessment of disputed evidence.

An investigatory omission does not make a dismissal unfair where it has no material effect on the evidential basis of the decision. This may be so where the decision-maker reasonably relies on CCTV evidence rather than the account of a witness whose account is contradicted by it.

Although an unfair dismissal claim need not plead every possible defect, the employer must know the case it has to meet and be able to address significant points arising during the hearing.

An experienced prison officer was summarily dismissed after using force against a prisoner. The employer concluded, principally from CCTV footage and other evidence, that she had used unlawful force and had not acted in self-defence.

The Employment Tribunal at North Shields upheld claims for unfair and wrongful dismissal, subject to a 35% reduction for contributory fault. It held that the investigation was unfair because the prisoner had not been shown the CCTV footage, and that the dismissing officer had reached conclusions no reasonable employer could reach.

The Secretary of State appealed. The central issue was whether the Tribunal had applied the statutory reasonable-response test or had substituted its own view of the CCTV evidence and the underlying incident.

1. Appeal allowed. The unfair dismissal claim was remitted for a fresh hearing before a differently constituted Employment Tribunal.

2. The applicable question under Employment Rights Act 1996, section 98(4), was whether the employer had acted within the band of reasonable responses. In a misconduct case, the Tribunal had to consider whether the employer had reasonable grounds for its belief and had undertaken a reasonable investigation. It could not decide for itself what the CCTV footage proved.

3. The investigating officer's failure to show the recording to the prisoner was capable of being an investigatory failing. It did not, however, render the dismissal unfair. The dismissing officer had proceeded on the understanding that the prisoner had changed his account and, where that account conflicted with the recording, had relied on what he could see on the recording. The omitted step therefore made no material difference to the evidential foundation or fairness of the dismissal decision.

4. The Tribunal perversely found that the dismissing officer had relied to a significant extent on the prisoner's account when deciding that the claimant had used unlawful force. Apart from the initial exchange, the dismissal reasons were based on the recording and other evidence. The Tribunal was entitled to consider the surrounding background, but it fell into substitution by forming its own view of the footage rather than asking what a reasonable employer could conclude at the moment force was used.

5. The Tribunal also erred in finding that mitigation had not been considered without clearly resolving the dismissing officer's explanation that he recorded submissions in notes and relied on them when deciding the case. A short adjournment alone did not establish that the dismissal was preordained.

6. The Tribunal need not require exhaustive pleading of every alleged investigatory defect. Nevertheless, an employer must have fair notice of the case to answer, and the parties must have an opportunity to address material matters emerging during the evidence. Those fair-hearing concerns did not alone determine the appeal, but helped explain the errors made.

• Employment Appeal Tribunal: allowed the employer's appeal in [2017] UKEAT 0096_17_0210 and remitted the unfair dismissal claim for a fresh hearing before a different Employment Tribunal.

• Employment Tribunal, North Shields: upheld the claimant's unfair dismissal and wrongful dismissal claims, with a 35% reduction for contributory fault. The reserved judgment was sent to the parties on 12 January 2017.