Portsmouth Hospitals NHS Trust v Corbin

In determining fairness under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the employer’s decision at the time it was made and must not substitute its own view. It may nevertheless find dismissal outside the range of reasonable responses where the employer adopted a closed approach, ignored relevant mitigation and failed to consider lesser sanctions.

Wrongful dismissal requires an objective determination of whether the employee committed a repudiatory breach of contract. Contributory fault requires the Tribunal to identify the employee’s conduct, decide whether it was blameworthy and, for the compensatory award, determine causation. Adequate reasons must show that those distinct inquiries and the material evidence were addressed.

A senior radiographer was summarily dismissed after using partially redacted confidential patient information in a disciplinary defence pack. The Southampton Employment Tribunal upheld her claims for unfair and wrongful dismissal, made no reduction for contributory fault, and later extended time for, but refused, the employer’s reconsideration application.

The employer appealed the findings on unfair dismissal, wrongful dismissal and contribution, and the reconsideration decision. The employee cross-appealed against the extension of time. The central issues were whether the Tribunal had substituted its own view under section 98(4), whether it had applied and explained the objective contractual test for summary dismissal, and whether it had adequately addressed contributory fault.

1. Appeal allowed in part; cross-appeal dismissed. The appeal against the finding of unfair dismissal was dismissed. The appeals concerning wrongful dismissal, contributory fault and reconsideration were allowed. The latter two substantive issues were remitted to the same Employment Tribunal.
2. The Tribunal permissibly found that the dismissing manager had a closed mind. He treated any confidentiality breach as requiring dismissal, did not consider a lesser sanction, and disregarded mitigating matters identified in the investigation report. On those unchallenged factual findings, the Tribunal was entitled to conclude that dismissal lay outside the band of reasonable responses under section 98(4) of the Employment Rights Act 1996. It had assessed the employer’s decision rather than deciding for itself what sanction it would impose.
3. The reasoning on wrongful dismissal was inadequate. That claim required an objective determination of whether the employee had committed a serious repudiatory breach of contract. The Tribunal did not explain how it addressed that question or how its findings led to the conclusion that summary dismissal was not contractually justified.
4. The reasoning on contributory fault was likewise inadequate. The Tribunal had to identify the conduct alleged to be contributory, decide whether it was blameworthy, and address causation for the compensatory award under sections 122(2) and 123(6). It did not show that it had fully addressed the employee’s admissions or explained why they did not support contribution.
5. The reconsideration decision did not cure those deficiencies and was set aside. The extension of time was, however, sufficiently explained by reference to the employer’s detailed application and was a proportionate exercise of discretion. Remittal to the same three-member Tribunal was proportionate because its detailed factual findings remained largely undisturbed.

• Employment Appeal Tribunal: allowed the employer’s appeals on wrongful dismissal, contributory fault and reconsideration; dismissed its appeal on unfair-dismissal liability; dismissed the employee’s cross-appeal; and remitted the two substantive issues to the same Employment Tribunal.
• Southampton Employment Tribunal: by a decision sent on 16 December 2015, upheld unfair and wrongful dismissal claims and made no reduction for contribution. By a reconsideration decision sent on 2 February 2016, it extended time for the employer’s application but refused reconsideration.