Bah v Berendsen UK Ltd

An Employment Tribunal need not address every argument or sub-issue in its reasons. The adequacy of reasons is fact-specific. The Tribunal must identify and explain the issues that were vital to its conclusion, but it may deal with immaterial points within its overall assessment.

When assessing misconduct dismissal, the Tribunal may evaluate the investigation and disciplinary process as a whole. A procedural defect, including lost disciplinary notes, does not by itself establish unfair dismissal. The question remains whether dismissal was unfair in all the circumstances.

Where a wrongful dismissal claim has been overlooked, it should ordinarily be remitted for determination. A remittal to the same Tribunal may be appropriate where there is no reason to doubt its ability to determine the outstanding claim fairly.

The Claimant, a long-serving laundry operator, was summarily dismissed for gross misconduct following an altercation at work. He brought claims for unfair dismissal and wrongful dismissal.

The Employment Tribunal rejected the unfair dismissal claim. It found that the Respondent had a genuine belief in misconduct, based on a fair and reasonable investigation and disciplinary process, notwithstanding identified defects. It did not determine the wrongful dismissal claim.

On appeal, the Claimant contended that the Tribunal had failed to address three criticisms of the investigation and procedure: the failure to interview two potential witnesses, the failure to put his account to other witnesses, and the loss of disciplinary-hearing notes. The central issue was whether those omissions made the Tribunal’s reasons legally inadequate or undermined its conclusion on fairness.

1. The appeal was allowed in part. The unfair dismissal appeal was dismissed. By consent, the appeal concerning wrongful dismissal was allowed because the Employment Tribunal had failed to determine that claim. It was remitted, if possible, to Employment Judge Siddall.

2. The Tribunal had correctly applied the Burchell approach. It addressed whether the Respondent had reasonable grounds for its belief in misconduct and whether that belief followed a reasonable investigation and disciplinary procedure. Its evaluation of the process as a whole was permissible.

3. The adequacy of reasons under rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2013 depends on the circumstances. Reasons must enable the parties and an appellate court to understand the basis of the decision. They need not answer every argument. The materiality of an omitted argument is relevant to whether its omission amounts to an error of law.

4. The three omitted or insufficiently addressed points could not realistically have affected the Tribunal’s conclusion. The two uncalled witnesses had only observed part of the events and there was no evidential basis for supposing that they would have assisted the Claimant. There was no requirement to put the Claimant’s competing account to each witness. The loss of notes did not render the dismissal unfair: unlike the circumstances in Vauxhall Motors Ltd v Ghafoor, the Claimant had received the material allegations and evidence before the disciplinary hearing.

5. A procedural defect is not itself the statutory test. The question under section 98(4) was whether dismissal was unfair in all the circumstances. The absence of the notes had no identified effect on the internal process or its outcome; any resulting evidential difficulty at the Tribunal hearing was distinct from the fairness of dismissal.

6. A different constitution was not warranted for the remitted wrongful dismissal claim. The omission resulted from the Tribunal concentrating on unfair dismissal, and its existing findings could be relevant to the contractual claim.

• Employment Appeal Tribunal — allowed the appeal concerning the overlooked wrongful dismissal claim and remitted it to the same Employment Tribunal if possible; dismissed the appeal against the unfair dismissal decision: [2020] UKEAT 0256_19_0502.
• Employment Tribunal, London (South) — judgment sent to the parties on 23 March 2019. It dismissed the unfair dismissal claim but made no determination of the wrongful dismissal claim.