Greenberg v DPP Law Ltd (UNFAIR DISMISSAL)

An Employment Tribunal must determine whether the employer actually reached its conclusions on reasonable grounds after a reasonable investigation. It must not uphold a dismissal because the evidence could have justified a conclusion which the employer may not have reached.

Where the principal disciplinary case alleges deliberate misconduct, an alternative case based on negligence or error of judgment can sustain dismissal only if the employer actually considered and relied on that alternative basis. The tribunal must make findings about the decision-makers’ reasoning and their treatment of mitigation. An internal appeal may cure an earlier procedural defect when the process is assessed as a whole.

The claimant, a solicitor, director and shareholder in a firm undertaking legally aided criminal defence work, accepted two cash payments from the father of a client. The firm dismissed him for gross misconduct after concluding that the second payment was a prohibited top-up payment under its Legal Aid Agency contract, or alternatively showed serious negligence.

The Employment Tribunal dismissed his unfair-dismissal claim. It found that the employer genuinely believed the allegations, had reasonable grounds for its conclusions, and that dismissal fell within the range of reasonable responses. The claimant appealed, principally challenging the Tribunal’s treatment of the alleged contractual breach and the alternative negligence case.

1. Appeal allowed. The Employment Tribunal erred by upholding the dismissal on the basis of its own assessment that the evidence could reasonably support the conclusion that the claimant had knowingly accepted a top-up payment in breach of the Legal Aid Agency contract.

2. The primary disciplinary case was that there had in fact been a contractual breach, with serious consequences for the firm’s legal-aid business. The evidence for that conclusion was circumstantial and inferential. The Legal Aid Agency had not reached a concluded view. The Tribunal therefore had to examine the evidence of the actual reasoning of the dismissal and appeal decision-makers, and decide whether their conclusions had reasonably been reached on the material before them.

3. The Tribunal did not make sufficient findings about how either decision-maker had reasoned from the evidence, including the claimant’s explanation that he believed the payment was a gift. Its analysis instead showed that it had formed its own firm view of that evidence. That was an impermissible substitution of the Tribunal’s assessment for the employer’s actual reasoning.

4. The alternative conclusion that the claimant had been reckless, grossly negligent, or made a serious error of judgment could not independently uphold the dismissal. Negligent conduct may in an appropriate case justify dismissal. But the Tribunal had not found that either decision-maker had separately considered that alternative basis, considered mitigation on that footing, and decided that dismissal was warranted even if the primary allegation failed.

5. The Tribunal had not otherwise erred in holding that the claimant had an overall opportunity to answer the allegations. The appeal process could be considered as part of the process as a whole. Nor was the later decision of the Legal Aid Agency, or the subsequent Ombudsman material, relevant to the fairness of decisions made earlier by the employer.

6. The case was remitted for a rehearing before a different Employment Judge. Further findings were required and the Employment Appeal Tribunal could not conclude that unfair dismissal was the only possible outcome.

• Employment Appeal Tribunal: Allowed the appeal and remitted the unfair-dismissal claim for rehearing before a different Employment Judge: [2020] UKEAT 0319_19_0608.
• Employment Tribunal: Dismissed the claimant’s unfair-dismissal claim, holding that his conduct dismissal was fair.