Murdoch v Whitbread Group Plc

An employer must state a disciplinary allegation with sufficient clarity to identify whether it concerns competence, conduct, or both. A dismissal for an alleged failure in performance cannot properly be founded on an unnotified allegation that the employee acted deliberately or for an illegitimate motive. Such an allegation is materially more serious and requires specific notice, so that the employee can answer it.

An Employment Tribunal errs in law if it treats evidence of intention or motive as supporting a disciplinary ground which, on its terms, concerns only competence. That error concerns the true reason and scope of the dismissal ground, rather than an impermissible substitution of the Tribunal's view for the employer's.

The appellant had been dismissed under a disciplinary ground described as a failure to process team members' payments correctly. The employer's case and the disciplinary outcome also involved the view that she had acted deliberately or for an illegitimate reason.

The Employment Judge accepted the employer's approach. The appellant appealed to the Employment Appeal Tribunal, contending that the Employment Judge had misunderstood the reason for dismissal and that she had not received notice of the more serious allegation. The central issue was whether an allegation framed as a competence failure permitted reliance on intention or improper motive.

1. Appeal allowed. The Employment Judge erred in law by permitting the employer to rely on the appellant's alleged illegitimate intention or motive when assessing a dismissal based on the stated ground of failure to process payments correctly.

2. The stated ground allowed investigation of whether the appellant had been properly trained and whether she had a proper excuse for processing payments incorrectly. If she had been trained and lacked a proper excuse, the employer could discipline her for that failure. It did not, however, encompass an allegation that she deliberately processed payments incorrectly or did so for an illegitimate reason.

3. Deliberate or improper conduct was a substantially more serious allegation than the competence-based ground stated. If the employer intended to rely on it, it had to formulate and notify that allegation specifically. The appellant was entitled to know that the case extended beyond competence and included conduct, and to know its gravity.

4. The Employment Judge should have confined the evidence considered to material capable of supporting the stated ground. Evidence concerning an improper motive lay outside that ground. Although the Employment Judge correctly recognised that the employer had in fact taken motive into account, he failed to recognise that this was beyond the terms of the notified allegation.

5. The error was not substitution of the Employment Judge's own view for that of the employer. The Judge had accepted the employer's view as reasonable within section 98(1). The legal error was instead the acceptance of a dismissal reason which had not been properly alleged. Ground 2 succeeded; ground 1(a) was rejected and the second limb of ground 1 did not arise.

• Employment Appeal Tribunal: Allowed the appellant's appeal, holding that the Employment Judge had erred by treating an unnotified allegation of deliberate or illegitimate conduct as falling within the stated competence-based disciplinary ground.

• Employment Tribunal: Dismissal claim determined by the Employment Judge; the citation and further procedural details are not stated in the judgment.