DPP Law Ltd v Greenberg

An employment tribunal’s decision must be read fairly and as a whole. An appellate court should avoid an overcritical analysis of isolated words or passages. A tribunal need not identify every item of evidence or every step in its reasoning, provided its reasons adequately explain why the parties won or lost.

The omission of evidence or reasoning from the written decision does not establish that it was absent from the tribunal’s consideration. Where an experienced specialist tribunal correctly states familiar legal principles, an appellate court should ordinarily presume that it applied them. That presumption is displaced only where the decision’s language clearly demonstrates the application of a different principle.

A solicitor was summarily dismissed for gross misconduct after accepting a second cash payment from the father of a legally aided client. The Employment Tribunal dismissed his unfair dismissal claim. It found that the employer genuinely believed the alleged misconduct had occurred, had reasonable grounds for that belief and had followed a procedure which was fair when viewed as a whole.

The Employment Appeal Tribunal allowed the employee’s appeal and ordered a full rehearing. It held that the tribunal’s conclusions were insufficiently rooted in findings about the decision-makers’ actual reasoning and that the tribunal had substituted its own assessment of the evidence.

The employer appealed. The central issue was whether the Employment Appeal Tribunal had identified an error of law in the Employment Tribunal’s application of the misconduct-dismissal principles.

1. Appeal allowed. The Employment Appeal Tribunal, rather than the Employment Tribunal, had erred in law. The Employment Tribunal’s decision dismissing the unfair dismissal complaint was restored.

2. The Employment Tribunal had correctly stated and applied the misconduct-dismissal test derived from British Home Stores Ltd v Burchell [1980] ICR 303. It found that the employer’s decision-makers genuinely believed all the misconduct alleged in the disciplinary letter had been established. It then addressed whether they had reasonable grounds for that belief. Read fairly and in context, its language did not show that it had substituted its own view of the employee’s guilt or considered only what a hypothetical employer could have decided.

3. An employment tribunal’s decision must be read fairly and as a whole. An appellate tribunal should not isolate particular expressions, fragment the reasoning or subject the decision to a hypercritical analysis. This benevolent approach accords with Brent v Fuller [2011] ICR 806 and applies equally to employment tribunal decisions and arbitral awards.

4. A tribunal need not identify every item of evidence or express every step in its reasoning. It is sufficient that its reasons comply with the standard in Meek v Birmingham City Council [1987] IRLR 250 by telling the parties, in broad terms, why they won or lost. The absence of an express reference to evidence does not establish that the evidence did not exist or was left out of account.

5. The Employment Appeal Tribunal therefore could not infer from the written decision’s lack of further detail that no evidence existed about the disciplinary decision-makers’ reasoning. In any event, the Employment Tribunal had identified sufficient aspects of that reasoning. These included the impartiality attributed to the barrister’s statement, the timing and circumstances of the second payment, the failure to report it to the firm’s compliance officers and the risk that repeated cash payments compromised professional integrity.

6. Where a specialist tribunal correctly states familiar legal principles, an appellate court should be slow to conclude that it failed to apply them. Such a conclusion should generally be drawn only where the language clearly shows that a different principle governed the tribunal’s decision. The Employment Appeal Tribunal’s alternative reasoning concerning negligence did not need to be considered.

1. Court of Appeal (Civil Division): Allowed the employer’s appeal and restored the Employment Tribunal’s dismissal of the unfair dismissal complaint: [2021] EWCA Civ 672.

2. Employment Appeal Tribunal: Allowed the employee’s appeal and remitted the unfair dismissal claim for a full rehearing before a fresh tribunal. No neutral citation is stated in the judgment.

3. Employment Tribunal: Dismissed the employee’s unfair dismissal complaint, finding that the employer had dismissed him fairly for a reason relating to conduct.