L HARRIS v EAST LANCASHIRE HOSPITALS NHS TRUST

An appeal to the Employment Appeal Tribunal lies only on a question of law. A perversity challenge succeeds only where the employment tribunal reached a conclusion which no reasonable tribunal, properly appreciating the evidence and law, could have reached.

An appellate tribunal must read employment tribunal reasons fairly and as a whole. It must not re-try factual disputes or infer from an omitted reference that evidence was disregarded.

The reasonable commencement of a disciplinary investigation does not breach the implied term of mutual trust and confidence. Even an unreasonable decision will not amount to such a breach unless, viewed objectively, it is sufficiently serious to be calculated or likely to destroy or seriously damage trust and confidence.

The claimant, an experienced registered nurse, resigned after a disciplinary investigation and written warning arising from an incident involving the administration of unprescribed blood without required checks and documentation. She alleged constructive unfair dismissal.

The Employment Tribunal dismissed the claim. It found that Mr Smith decided on 1 March 2017, after discussion with Ms Dean, to commence disciplinary proceedings. The decision rested on the seriousness of the incident, the rapid review, the incident decision tree, advice from HR, the claimant's email, and concern that she had not adequately reflected on the incident.

The claimant appealed on limited perversity grounds. She challenged when and why the decision was made and contended that the respondent's procedures required informal processes to finish first.

1. Appeal dismissed. The Employment Tribunal's findings that Mr Smith made the decision on 1 March 2017, after discussion with Ms Dean, and for a combination of identified considerations, had an ample evidential basis. The appeal was in substance an attempt to re-argue factual issues.

2. Under section 21 of the Employment Tribunals Act 1996, the EAT may determine only questions of law. Applying Yeboah v Crofton, a perversity appeal requires an overwhelming case that no reasonable tribunal, properly appreciating the evidence and law, could have reached the impugned conclusion. An appellate court must read tribunal reasons fairly and as a whole, without hypercritical scrutiny or an assumption that unmentioned evidence was ignored.

3. The Tribunal was entitled to accept parts of Mr Smith's evidence and reject others. His witness statement did not compel the conclusion that the decision was made on 28 February. The evidence supported the finding that he had been informed of the concern about inadequate reflection before taking the decision on 1 March.

4. The Tribunal was also entitled to find that the respondent's procedures did not prohibit disciplinary and incident processes from proceeding side by side. Mr Smith had reasonable and proper cause to commence the disciplinary process. Accordingly, there was no breach of the implied term of mutual trust and confidence identified in Malik.

5. Further, commencement of a disciplinary investigation, as distinct from charges or a sanction, is capable in an appropriate case of breaching the implied term. On these facts it was not sufficiently serious, objectively viewed, to be calculated or likely to destroy or seriously damage trust and confidence. The EAT found no error of law.

• Employment Appeal Tribunal: dismissed the claimant's appeal against the dismissal of her constructive unfair dismissal claim.
• Employment Tribunal: Employment Judge Franey, sitting from 7 to 18 October 2019, dismissed the claimant's constructive unfair dismissal claim; judgment sent to the parties on 28 October 2019.