Mark Ward v Dimensions (UK) Limited

In an unfair-dismissal case, the tribunal must assess the overall fairness of the employer’s process under section 98(4), rather than determine for itself whether the alleged misconduct occurred. A departure from good practice, including the use of an appeal manager with earlier involvement, does not inevitably make a dismissal unfair. The question remains whether, in all the circumstances, the appeal was in fact tainted and the dismissal fell outside the band of reasonable responses.

A belief that an employee owned a weapon is not a necessary element of a charge that the employee made a threatening statement. Where the employer’s decision rested on a reasonably reached belief that the threat was made, an immaterial or peripheral finding about past weapon ownership does not vitiate the dismissal.

The claimant, a support worker, was dismissed for gross misconduct after the respondent concluded that he had threatened a colleague by saying that he had a gun with her name on it. He denied making the threat. The Employment Tribunal dismissed his ordinary unfair-dismissal claim, together with protected-disclosure claims which were not pursued before the Employment Appeal Tribunal.

On appeal, two grounds proceeded. The first concerned the fairness of the appeal manager’s role, given his earlier involvement in suspending the claimant, authorising disciplinary charges, and speaking to the colleague. The second challenged the Tribunal’s statement that the claimant had acknowledged past possession of a gun. The central issue was whether either point disclosed an error of law in the Tribunal’s conclusion that the dismissal was fair.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal was fair under Employment Rights Act 1996, section 98(4).

2. The Tribunal was not required to decide whether the claimant had actually made the alleged threat. Its task was to decide whether the employer genuinely believed that he had done so, had reached that belief after a reasonable investigation, and had acted reasonably in dismissing him. It was entitled to find that the employer had done so on the accounts obtained during the investigation and the disciplinary process.

3. The appeal manager’s prior involvement did not automatically render the dismissal unfair. Although assigning a different manager to hear the appeal would have been practicable and was better practice, the Tribunal was entitled to assess the whole process. It found that the manager’s earlier conversation with the colleague had not influenced his appeal decision, that he formed a genuine belief on reasonable grounds, and that the appeal was not tainted.

4. Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 required the Tribunal to take the relevant ACAS Code into account. The failure to follow its preference for an uninvolved appeal manager was relevant, but did not by itself compel a finding of unfair dismissal.

5. The statement that the claimant had at one time possessed a gun was not an essential part of the Tribunal’s reasoning. The misconduct charge was making a threat, not owning a gun. Any past ownership could potentially bear on the credibility of the allegation, but was not a necessary ingredient of the employer’s conclusion. The Tribunal did not find that a belief in actual gun ownership materially influenced the decision to dismiss.

• Employment Appeal Tribunal: appeal dismissed: [2022] EAT 110.
• Employment Tribunal: dismissed the claimant’s claims, including the ordinary unfair-dismissal claim. No citation was stated.