Oxford University Hospital NHS Foundation Trust v I Khan & Anor

An appellate tribunal should not re-determine factual disputes merely because a different view of the evidence may be possible. Intervention on a perversity appeal is confined to an error of law. Proper weight must be given to the employment tribunal’s assessment of the totality of the evidence and its advantage in hearing live witnesses.

A tribunal may find a dismissal procedurally unfair where the decision-maker recommends dismissal before a material investigation has been completed, and may find that a later appeal did not cure that defect. Whether conduct amounts to gross misconduct depends on the findings properly open to the tribunal.

The claimants brought claims for wrongful and unfair dismissal after an alleged assault on a colleague. The Employment Tribunal found that Mr Khan committed the assault and was not wrongfully dismissed. It found that Mr Ali was present but that his failure to intervene did not amount to gross misconduct, so that he was wrongfully dismissed.

The Tribunal also held both dismissals procedurally unfair. The disciplinary decision-maker had recommended dismissal before obtaining finalised evidence from a witness whose evidence she considered required further investigation. The respondent appealed against the findings concerning Mr Ali and procedural unfairness. Mr Khan cross-appealed against the finding that he assaulted the colleague. The central issue was whether those conclusions were perverse or otherwise disclosed an error of law.

1. Appeal and cross-appeal dismissed. The Employment Tribunal’s conclusions were open to it on the evidence. The Employment Appeal Tribunal would not re-determine factual issues after a fair hearing merely because an appellate judge might initially be surprised by the result.

2. The Tribunal was entitled to accept the assaulted colleague’s evidence. His immediate report, visible distress and injuries provided ample support for its finding. It was not required to refer expressly to every item of contrary evidence, including the alleged motive to fabricate the accusation and supporting evidence said to bear on that motive.

3. For wrongful dismissal, the respondent had to establish conduct by Mr Ali which fundamentally breached his contract. The Tribunal permissibly found only that he was present during the assault and did not intervene. It was entitled to conclude that this did not, without more, amount to gross misconduct. It was not perverse to reject the respondent’s case that he participated in a joint enterprise or blocked the office door.

4. The Tribunal was also entitled to find the dismissals procedurally unfair. The decision-maker had sought further evidence because she considered it material, but recommended dismissal before it had been finalised. The Tribunal could find that later stages did not cure the defect, including because the appeal decision-maker did not understand the claimants’ case about the significance of that evidence.

5. The Tribunal did not substitute its own view for that of the employer in Mr Ali’s unfair-dismissal claim. It was entitled to find that the allegation had changed over time and that the disciplinary decision-maker had not identified conduct by him which facilitated the assault beyond his presence and failure to intervene.

• Employment Appeal Tribunal: Appeal and cross-appeal dismissed. The Tribunal’s findings of wrongful dismissal and procedural unfairness were upheld.
• Employment Tribunal: Following a hearing in December 2019, it held Mr Khan not wrongfully dismissed, Mr Ali wrongfully dismissed, and both dismissals unfair. The judgment was sent to the parties on 7 January 2020.