Camden and Islington NHS Foundation Trust v Uddin

An Employment Tribunal must first identify clearly and consistently the employer’s actual reason for dismissal. Under section 98(4) of the Employment Rights Act 1996, a finding that conduct was not gross misconduct does not itself establish unfair dismissal. The Tribunal must decide whether the employer acted reasonably in treating the identified reason as sufficient for dismissal, having regard to all the circumstances.

Whether conduct amounts to gross misconduct is ordinarily a contractual question of fact for the Tribunal itself. It is distinct from the statutory assessment of fairness. In reviewing an investigation, the Tribunal should assess the overall fairness of the process, rather than prescribe a preferable investigative course.

The employee, a night telephonist, was dismissed after an investigation found repeated absences, lateness and early departures from rostered shifts. The employer’s dismissal letter characterised the conduct as fraud because she had been paid for work not done. At the Employment Tribunal, the dismissing officer’s evidence appeared to qualify that characterisation.

The Employment Tribunal upheld claims for wrongful and unfair dismissal, while reducing compensation for contributory fault by 50%. The employer appealed the unfair-dismissal decision. Its challenge to the wrongful-dismissal decision had already fallen away. The central issue was whether the Tribunal had correctly applied section 98(4) of the Employment Rights Act 1996 after finding that the conduct was not gross misconduct.

1. Appeal allowed. The finding of unfair dismissal was set aside and that claim was remitted to a newly constituted Employment Tribunal for reconsideration from the beginning.

2. The Employment Tribunal did not impermissibly substitute its own view when deciding whether the conduct amounted to gross misconduct. In the absence of a contractual provision to the contrary, gross misconduct is a contractual issue of fact which the Tribunal must determine for itself.

3. However, the Tribunal erred in its application of section 98(4) of the Employment Rights Act 1996. It had treated its finding that the conduct was not gross misconduct as necessarily meaning that summary dismissal was outside the range of reasonable responses. The statutory question was instead whether the employer had acted reasonably or unreasonably in treating the reason for dismissal as sufficient.

4. The Tribunal had also failed to identify the reason for dismissal with the necessary clarity. Its decision variously referred to unauthorised shift changes, failures to notify management, non-attendance, and an alleged fraud which may have been qualified in oral evidence. That uncertainty prevented a proper assessment under section 98.

5. The Appeal Tribunal declined to substitute a finding that dismissal was fair. The statutory appraisal required consideration of circumstances which the Tribunal had not addressed. The new Tribunal must make an independent decision on all issues concerning unfair dismissal, procedure, and, if liability is established, remedy and any reduction for contributory fault under section 123(6).

6. The employee’s procedural and contributory-fault arguments did not preserve the existing decision. The comments on those matters were not binding on the Tribunal on remittal.

• Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the finding of unfair dismissal, and remitted the unfair-dismissal claim to a fresh Employment Tribunal.

• Employment Tribunal: Upheld the employee’s claims for unfair dismissal and wrongful dismissal, and made a 50% reduction for contributory fault. The appeal against the wrongful-dismissal conclusion was not pursued because it disclosed no arguable error of law.