Bluebird Buses Ltd v Borowicki

On an appeal alleging perversity, the appellant must show that no reasonable tribunal, properly appreciating the evidence and law, could have reached the decision. An appellate tribunal must exercise great care even where it has serious doubts.

Under section 98(4) of the Employment Rights Act 1996, an employment tribunal may assess the employer's treatment of known mitigating circumstances and conclude that dismissal fell outside the range of reasonable responses. That assessment does not amount to impermissible substitution where the tribunal applies the statutory test rather than its own preferred disciplinary outcome.

The claimant, a bus driver, drove into flood water after judging that water on the road was shallow. The bus became stranded. He was dismissed summarily for gross incompetence.

The Employment Tribunal held that the dismissal was both unfair and wrongful. It found that the claimant had made a serious error of judgment, but that the employer had not adequately taken account of the conditions apparent to him, the absence of sufficient warning and training, and other mitigating circumstances.

The employer appealed to the Employment Appeal Tribunal. It alleged that both conclusions were perverse and that, on unfair dismissal, the Tribunal had substituted its own view for that of the employer.

1. Appeal dismissed. The employer did not meet the high threshold for a perversity appeal stated in Yeboah v Crofton, [2002] EWCA Civ 794. There was an evidential basis for the Tribunal's conclusion that the managers had failed to assess the incident by reference to what the claimant had encountered at the time, rather than what later CCTV footage showed.

2. The Employment Judge was entitled to resolve the conflict between the claimant's evidence and the managers' later evidence. The challenged observation about hindsight was an inference from the material before the Tribunal, not an unsupported finding of fact. The Tribunal could reject the managers' evidence as to what had influenced their decision. Its conclusions on both unfair and wrongful dismissal were therefore open to it.

3. The Tribunal correctly distinguished the two causes of action. Wrongful dismissal required an objective assessment of whether the claimant's conduct amounted to a repudiatory breach of contract. Unfair dismissal required the statutory assessment under section 98(4) of the Employment Rights Act 1996, directed to whether a reasonable employer could treat the established conduct as sufficient reason for dismissal.

4. The Tribunal did not substitute its own view for that of the employer. It had expressly directed itself against doing so and was entitled to review the employer's analysis of the facts known at dismissal. The claimant's limited opportunity to assess the water, his reaction to the danger, his acceptance that he had erred, and the absence of adequate training and warning were known mitigating matters. The Tribunal was entitled to conclude that a reasonable employer would have treated them as militating against summary dismissal.

5. The range of reasonable responses is not unlimited. The Tribunal's conclusion that the dismissal was outside that range was a permissible application of section 98(4), not procedural box-ticking or an imposition of an unduly exacting standard on the employer.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the Employment Tribunal's findings of unfair dismissal and wrongful dismissal.
• Employment Tribunal: held that the claimant had been unfairly and wrongfully dismissed and awarded compensation. No citation is stated in the judgment.