Tai Tarian Ltd v Christie

For unfair-dismissal purposes, the employer’s reason is the facts or beliefs operating on the decision-maker’s mind. Evidence bearing on an employee’s propensity may be relevant, but it does not determine either the decision-maker’s genuine belief or the reason for dismissal.

Under section 98(4) of the Employment Rights Act 1996, the tribunal must assess the employer’s conduct against the band of reasonable responses. It must not substitute its own assessment of a complainant’s credibility, investigation, or sanction. In an anonymous-complainant case, an employer’s acceptance of the evidence may be rejected only for logical and substantial grounds.

A housing association summarily dismissed its carpenter, who had more than 14 years’ service, after a tenant alleged that he had made homophobic comments. The employee denied the allegation. He brought claims for unfair and wrongful dismissal.

The Employment Tribunal upheld both claims. It found that the appeal decision-maker did not genuinely believe the allegation, that the investigation and reliance on the tenant’s anonymous account were unreasonable, and that dismissal fell outside the band of reasonable responses. It made no Polkey reduction.

The employer appealed the unfair-dismissal decision. The central issues were whether the Tribunal had properly identified the reason for dismissal and had applied, rather than substituted its own view for, the statutory fairness test.

1. Appeal allowed. The Employment Tribunal’s findings on the reason for dismissal, fairness, sanction and Polkey could not stand. The claim was remitted for a complete rehearing before a differently constituted Tribunal.

2. Under sections 98(1) and (2) of the Employment Rights Act 1996, the employer had to establish the reason that operated on the decision-maker’s mind. The Tribunal gave no proper evidential basis for rejecting the appeal decision-maker’s evidence that she believed the employee had made the alleged remarks. Its acceptance that character evidence showed he was not homophobic did not necessarily mean that she could not genuinely believe he had made them. Propensity evidence might bear on whether there were reasonable grounds for belief, but was not determinative of the actual reason.

3. Under section 98(4), the Tribunal had to assess the employer’s conduct and decisions at each stage against the band of reasonable responses. It was entitled to criticise aspects of the procedure, including the non-disclosure of the first tenant-interview note. However, it wrongly found that the tenant had refused further evidence; the evidence established only that she declined a further meeting at that time because of personal circumstances.

4. The Tribunal also impermissibly substituted its view of the tenant’s credibility. Its own finding was that the two accounts contained only slight differences. It had no logical and substantial grounds for finding embellishment or for concluding that the employer could not reasonably accept the account. Its proposed further investigation into another source for the apprentice anecdote failed to engage with the employer’s reasoned view that this would not explain the tenant’s knowledge of the employee’s involvement.

5. The Tribunal similarly failed to assess sanction in the particular context of a social housing provider committed to equality and diversity. Its Polkey conclusion was internally inconsistent: disclosure of the first note could have tipped the balance, yet it found no likelihood of dismissal. The identified flaws went to the heart of the decision, so a fresh hearing was required.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the unfair-dismissal claim for a complete rehearing before a different Employment Tribunal: [2020] UKEAT 0059_19_0303.
• Employment Tribunal, Carmarthen: Held that the employee had been unfairly and wrongfully dismissed. Its reserved judgment, following a hearing on 18 June 2018, was sent to the parties on 4 November 2018. No citation was stated.