Leicester City Council v A Chapman

In a conduct dismissal case, an Employment Tribunal must assess the employer’s decision on the evidential position and reasoning before the decision-maker. It must not substitute its own assessment of the alleged misconduct for that of the employer where the employer had reasonable grounds for its belief.

For wrongful dismissal, the tribunal must determine whether repudiatory misconduct occurred on the balance of probabilities. It may prefer live evidence and give limited weight to indirect evidence, but it must not disregard documentary or indirect oral evidence that is capable of proving or disproving the issue.

The claimant, a leisure centre attendant, was summarily dismissed after allegations that he had physically and sexually harassed a colleague during workplace interactions. The employer relied on CCTV footage, the colleague’s account, an internal investigation, a disciplinary hearing and a failed internal appeal.

An Employment Tribunal upheld claims for unfair dismissal and wrongful dismissal. It found that the dismissing officer lacked reasonable grounds for accepting the alleged remarks said to have accompanied the physical conduct. It also held that the employer had called no relevant evidence other than silent CCTV footage to prove repudiatory misconduct.

The employer appealed. The central issues were whether the Tribunal had substituted its own view for that of the dismissing officer, and whether it had wrongly disregarded potentially probative evidence on the contractual claim.

1. Appeal allowed. The Tribunal’s conclusions on both unfair and wrongful dismissal were unsafe and the claims were remitted to the Employment Tribunal.

2. Under Employment Rights Act 1996, section 98(4), the question was whether the employer acted within the range of reasonable responses. The Tribunal correctly directed itself on that test, but then fell into a substitution mindset.

3. The Tribunal had treated the alleged “bite this” remark as decisive to the employer’s finding of sexual harassment. The claimant had not given a conflicting account of that remark: after seeing the CCTV footage, he accepted the physical action but could not recall what he had said. The dismissing officer was entitled, on the evidence before him, to accept the colleague’s consistent account without necessarily disbelieving the claimant.

4. The Tribunal also wrongly attributed to the dismissing officer a conclusion that the claimant had changed his account. That was not the reasoning given in the dismissal letter. Its treatment of the colleague’s warning that she might bite the claimant disclosed its own assessment of the interaction, rather than an assessment of the employer’s decision. It was not outside the range of reasonable responses to regard the alleged remark and conduct as unwanted sexual harassment.

5. The errors did not compel a finding that the dismissal was fair. Some earlier investigative defects, including possible unfairness caused by delay, might remain material despite later stages of the process. A remittal was therefore required.

6. On wrongful dismissal, the Tribunal had to decide for itself whether repudiatory misconduct was proved on the balance of probabilities. The employer had adduced witness statements, investigation and disciplinary documents, and indirect oral evidence, as well as CCTV footage. The Tribunal could reject or attach little weight to that material, particularly because primary witnesses were unavailable for cross-examination, but could not simply disregard it.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the findings of unfair and wrongful dismissal and remitted the matter to the Employment Tribunal: [2022] EAT 178.
• Employment Tribunal: Employment Judge Ahmed upheld the claimant’s claims for unfair dismissal and wrongful dismissal in a judgment sent to the parties on 8 December 2020.