ST MUNGOS COMMUNITY HOUSING ASSOCIATION v M FINNERTY

The Employment Appeal Tribunal allowed the employers appeal against an Employment Tribunal decision that the claimant had been unfairly and wrongfully dismissed. The EAT held that the tribunal erred in law by falling into the substitution error and failing properly to apply the band of reasonable responses approach under section 98 Employment Rights Act 1996 and the Burchell line of authority when assessing whether dismissal was within the range of reasonable sanctions. The tribunals extensive reliance on its own evaluation of the claimants conduct, mitigation and culpability meant it did not sufficiently engage with the employers reasoning or explain why the employers conclusions were outside the band of reasonable responses. The EAT also found the tribunals conclusion on wrongful dismissal legally unsafe because the tribunal either misunderstood the law on the implied duty of trust and confidence or failed to identify any contractual term it regarded as breached so as to justify a non-fundamental breach finding.

The claimant was employed as a Housing Management and Lettings Co-ordinator by a charity which provides services to homeless people. Following an incident at a project in which the claimant ran at and pushed a resident who later produced knives and attacked the claimant, the employer conducted disciplinary proceedings. The claimants incident report omitted reference to the push; his police statement admitted punching the resident. The employer dismissed the claimant for misconduct and alleged dishonesty; the internal appeal was unsuccessful. The Employment Tribunal (Employment Judge K J Palmer) upheld claims of unfair and wrongful dismissal.

The employer appealed to the EAT. The issues framed included (i) whether the tribunal misapplied the Burchell test and section 98(4) Employment Rights Act 1996 by failing to ask whether the employers belief was reasonable, (ii) whether the tribunal substituted its own view for that of the employer when assessing whether dismissal was within the band of reasonable responses, and (iii) whether the tribunals conclusion on wrongful dismissal was legally tenable, given the law on repudiatory breaches and the implied duty of trust and confidence.

The EAT reviewed the law (including British Home Stores Ltd v Burchell, Iceland Frozen Foods Ltd v Jones, London Ambulance Service NHS Trust v Small and Graham v Secretary of State for Work and Pensions) and concluded the tribunals decision was driven by the judges own factual evaluation of the incident and the claimants mitigation rather than a proper application of the objective band of reasonable responses test to the employers decision and reasons. The tribunal had not engaged sufficiently with the dismissal and appeal letters or explained why the employers reasoning was not within the band. On wrongful dismissal, the tribunals finding that the claimant breached contract but not fundamentally was legally unsafe because a breach of the implied term of trust and confidence would normally be fundamental, and the tribunal did not identify any other contractual term it had in mind. The EAT allowed the appeal on both unfair and wrongful dismissal grounds and remitted the matter accordingly (appeal allowed).

Appeal allowed. The Employment Appeal Tribunal found that the Employment Tribunal had fallen into error by substituting its own view for that of the employer and failing properly to apply the Burchell test and the band of reasonable responses under section 98 Employment Rights Act 1996 when assessing whether dismissal was a reasonable sanction. The tribunals wrongful dismissal conclusion was legally unsafe because it did not properly apply the law on repudiatory breaches and the implied duty of trust and confidence or identify any other contractual term said to have been breached.

Appeal to the Employment Appeal Tribunal from an Employment Tribunal decision (Employment Judge K J Palmer) given after a CVP hearing in February 2021 (Cambridge). Appeal determined by the EAT, Neutral Citation: [2022] EAT 117; Case No: EA-2021-000498-OO.