Wilko Retail Ltd v Gaskell & Anor

Under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must decide whether the employer's response fell within the range of reasonable responses. It must not replace the employer's assessment of the seriousness of misconduct, risk, comparators or sanction with its own assessment.

On alleged inconsistency, the Tribunal must first consider whether cases are truly comparable. It must then ask whether the employer's distinction between them was one open to a reasonable employer. A majority decision of lay members has equal status, but remains subject to appeal where it misapplies those legal requirements.

The claimants were dismissed after one routinely signed the workplace fire register for the other over several months. The employer treated the deliberate breach of its fire-safety procedure as gross misconduct. It upheld the dismissals through two internal appeals.

The Employment Tribunal majority upheld unfair-dismissal claims, finding no serious health-and-safety breach and inconsistency with the treatment of another employee. The Employment Judge dissented. The employer appealed, contending that the majority had substituted its own view for that of a reasonable employer when assessing seriousness and comparators.

1. Appeal allowed. The Tribunal majority made an error of law in determining fairness under section 98(4) of the Employment Rights Act 1996. Its conclusion could not stand.

2. The majority misunderstood material before the decision-makers. The claimants had ceased confirming by text when the second claimant left the site. It was therefore not certain that the fire register was always accurate when he was signed out.

3. More fundamentally, the majority substituted its own view of the purpose and seriousness of the fire-register procedure. The employer was entitled to regard physical presence at the register as important so that the register would provide certainty in an emergency. The Tribunal had unanimously accepted that evidence, but the lay members then treated repeated breach over many months as not serious according to their own assessment rather than asking whether the employer's assessment fell within the range of reasonable responses.

4. The Tribunal was not obliged to adopt the employer's label of falsification. That point alone would not have justified intervention. However, its inconsistency analysis was also flawed. It misstated the evidence about the comparator, who was on site when signed in, and did not ask whether it was reasonably open to the employer to distinguish a single breach from the claimants' sustained and repeated conduct.

5. Lay members have an equal role in Tribunal decisions and may permissibly differ from the Employment Judge. Their majority decision is nevertheless vulnerable where, as here, it fails to apply the governing legal test. Fairness was remitted for rehearing before a freshly constituted Employment Tribunal because only one outcome was not inevitable.

• Employment Appeal Tribunal: Allowed the employer's appeal and remitted the unfair-dismissal claims for rehearing before a freshly constituted Employment Tribunal.
• Employment Tribunal, Pontypridd: By a majority of lay members, upheld the unfair-dismissal claims. The Employment Judge dissented. The Tribunal unanimously rejected Mr Gaskell's trade-union complaints; those matters were not appealed.