St Nicholas School (Fleet) Educational Trust Ltd v Sleet

For the purposes of section 98 of the Employment Rights Act 1996, the tribunal must identify the facts known or beliefs genuinely held by the decision-maker which caused the dismissal. A possible underlying wish that employment should end does not, without more, displace a genuine conduct reason which actually caused the decision.

In assessing fairness, the tribunal must apply the band of reasonable responses and must not substitute its view of the investigation, safeguarding risk, process or sanction for that of a reasonable employer. Conclusions that the stated reason was not genuine, or that the decision-maker had a closed mind, require an adequate factual foundation.

The claimant was the school’s Maintenance Manager. He was summarily dismissed after the Head Teacher concluded that he had failed to report a changed use of a right of access across the school site, creating safeguarding and reputational concerns.

The Employment Tribunal upheld his unfair-dismissal complaint and awarded compensation of £39,854.23. It found that the asserted safeguarding concern was not the real reason for dismissal, that the Head Teacher lacked impartiality, and that the investigation and dismissal were outside the range of reasonable responses. It made no reduction for contributory conduct or under Polkey.

The employer appealed against both the liability and remedy judgments. The central issues were the genuineness of the dismissal reason, the proper application of section 98, and the adequacy of the tribunal’s approach to contribution and Polkey.

1. Appeals allowed. The Employment Tribunal’s liability and remedy judgments were set aside. The unfair-dismissal claim was remitted to a differently constituted Employment Tribunal for rehearing.

2. The Tribunal’s finding that conduct was not the reason or principal reason for dismissal could not stand. Its own finding of fact accepted that the Head Teacher had in mind the claimant’s failure to report safeguarding concerns arising from the changed use of the access route. That was consistent with the employer’s asserted conduct reason. The findings concerning the claimant’s service, occupational-health referral and final written warning did not establish that the Head Teacher’s stated belief was untrue.

3. Even if the Head Teacher had wished the claimant’s employment to end, that would not necessarily mean that the conduct issue was not the genuine reason which caused dismissal. Such a desire might bear on fairness, for example by showing a closed mind, but the Tribunal had not made findings capable of supporting its conclusion that the reason was not genuine.

4. The Tribunal’s conclusion that the Head Teacher was insufficiently impartial was also unsupported or inadequately explained. Her involvement in prior performance matters followed from her role as line manager and Head Teacher. The fact that a final written warning had been upheld on appeal could not, without further findings, establish a lack of impartiality in the later disciplinary process.

5. In reviewing fairness under section 98(4), the Tribunal had impermissibly substituted its own view. It focused on whether children had actually been at risk rather than the employer’s anticipatory safeguarding concerns; conflated knowledge of past use with knowledge of the change in use; and treated its own preferred precautions as determinative. Those errors prevented the finding of unfair dismissal from standing.

6. The remedy judgment necessarily fell with the liability judgment. The contribution finding depended on the flawed conclusion about the reason for dismissal. The Tribunal also had to give adequate reasons when addressing the matters relied upon for a Polkey reduction; an employer’s failure to rely on a matter at the original dismissal did not remove that task.

• Employment Appeal Tribunal: allowed the employer’s appeals, set aside the liability and remedy judgments, and remitted the unfair-dismissal claim to a differently constituted Employment Tribunal.
• Employment Tribunal (Reading): upheld the claimant’s unfair-dismissal complaint and awarded £39,854.23 compensation; it declined reductions for contributory conduct and under Polkey.