Mark Ward v Dimensions (UK) Limited

The Employment Appeal Tribunal dismissed the appellant's challenge to the employment tribunal's decision that his dismissal for conduct was fair. The tribunal applied s.98 of the Employment Rights Act 1996 and the Burchell test, focusing on whether the employer had a genuine belief in the misconduct on reasonable grounds after a reasonable investigation. Two principal points were raised on appeal: (1) that the appeal against dismissal was heard by an operations director (Mr Ellis) who had prior involvement in the process and so the appeal was unfair; and (2) that the tribunal wrongly recorded that the claimant had acknowledged past ownership of a gun.

The EAT held that the tribunal had properly considered the prior involvement of the appeal manager, including his conversations with the complainant, suspension of the claimant and approval of charges, and had reached a legitimate conclusion that those matters did not taint the appeal decision. The tribunal had considered s.98(4) factors, the employer's size and resources, and the overall process; it applied the band of reasonable responses standard. The EAT also held that any remark in the tribunal's reasons about past gun ownership was peripheral to the essential reasoning: the dismissal rested on a genuine belief that the claimant had made a threatening comment and not on a finding of gun ownership. The appeal was dismissed.

Background and parties: The appellant was employed as a support worker by the respondent charity and was dismissed for gross misconduct after an internal investigation and disciplinary hearing concluded that he had made a threatening comment to a colleague that he had a gun with her name on it. The appellant brought claims of unfair dismissal and detriment/dismissal for protected disclosures; an employment tribunal dismissed all claims in June 2019. The appellant appealed to the Employment Appeal Tribunal.

Procedural posture: The notice of appeal was initially considered not arguable on paper by HHJ Katherine Tucker, but at a Rule 3(10) hearing Choudhury P permitted two grounds to proceed to a full hearing before the EAT.

Nature of the claim / relief sought: The appellant sought to overturn the employment tribunal's dismissal of his claims, advancing two principal grounds relating to the fairness of the disciplinary and appeal processes underpinning his dismissal for conduct.

• Ground 1: The appeal was heard and decided by Mr Ellis, an operations director who had previously suspended the claimant, authorised the disciplinary charges and had a conversation with the complainant; this prior involvement meant the appeal was not impartial and the dismissal therefore unfair.
• Ground 2: The tribunal erred in recording or relying upon a finding that the claimant had acknowledged past ownership of a gun; that finding was unsupported by the evidence and vitiated the tribunal's conclusions.

Court's reasoning and decision: The EAT considered whether permission to amend to raise ground 1 should be revoked but allowed the point to be considered on the merits. On ground 1 the EAT examined the tribunal's factual findings about Mr Ellis' prior involvement (suspension, approving charges, conversation with the complainant advising her to consider reporting to police) and the tribunal's assessment of whether that prior involvement influenced his conduct of the appeal. The EAT accepted the tribunal's view that Mr Ellis' earlier impression of the complainant did not mean he discussed the substance with her or that he was tainted when deciding the appeal. The tribunal had properly applied s.98(4) ERA, taken account of employer size and resources, and considered the ACAS Code point in substance. The EAT found no error of law or perversity.

On ground 2 the EAT analysed the allegedly erroneous sentence and concluded it referred to what the tribunal understood to have been said during the internal disciplinary process rather than to a required ingredient of the misconduct. The dismissal turned on the employer's genuine belief that a threat had been made, not on proof of gun ownership. Any imprecise wording was peripheral and did not undermine the tribunal's essential reasoning. The EAT dismissed the appeal.

Appeal dismissed. The EAT concluded that the employment tribunal had correctly applied s.98 ERA and the Burchell principles, had reasonably found that the employer genuinely believed the claimant had made a threatening comment after a reasonable investigation, and had properly considered and rejected the contention that the appeal decision was tainted by the prior involvement of the appeal manager. An ancillary remark about past gun ownership was peripheral and did not vitiate the tribunal's decision.

Employment Tribunal at Watford dismissed the claimant's unfair dismissal and protected-disclosure claims after hearings in June 2019. The claimant appealed to the EAT; HHJ Katherine Tucker initially considered the notice of appeal not arguable on paper, but at a Rule 3(10) hearing Choudhury P permitted two grounds to proceed to a full hearing. The full EAT dismissed the appeal in this judgment ([2022] EAT 110).