Greater Glasgow Health Board v Stephen Mullen

The Employment Appeal Tribunal allowed the employer's appeal against an Employment Tribunal finding of unfair dismissal. The EAT emphasised the application of section 98(4) of the Employment Rights Act 1996 and the "range of reasonable responses" test: having found that the employer genuinely believed that the employee had committed gross misconduct (shouting at and threatening a colleague on 11 March 2021) and that that belief was reached after a reasonable investigation, the Tribunal could not then base its conclusion on a different factual hypothesis about the "real reason" for dismissal. The EAT held that, on the facts found, dismissal fell within the band of reasonable responses and was therefore fair.

Background and parties: The appellant employer dismissed Mr Stephen Mullen for gross misconduct arising from an alleged incident on 11 March 2021. Mr Mullen brought a claim of unfair dismissal and sought awards for basic and compensatory sums and notice pay.

Procedural history: The Employment Tribunal found that the employer genuinely believed the misconduct had occurred and that it had reasonable grounds and had carried out reasonable investigation. Despite those findings, the Tribunal concluded the dismissal was unfair because of procedural defects (delay in informing the employee of the allegation, length of the investigation, and participation of a manager who had prior involvement) and doubts about the "real reason" for dismissal. The employer appealed to the Employment Appeal Tribunal.

Nature of the claim / relief sought: The claim was for unfair dismissal and related compensation (basic award, compensatory award and notice pay). The appellant sought to set aside the Employment Tribunal's finding of unfair dismissal and consequential awards.

Issues framed by the court:

• Whether the Employment Tribunal had properly applied the statutory test in section 98(4) ERA, namely whether dismissal fell within the band of reasonable responses.
• Whether it was open to the Tribunal, having found an employer genuinely believed in proven misconduct, to base fairness on a different factual hypothesis as to the "real reason" for dismissal.
• Whether procedural departures identified by the Tribunal rendered the dismissal unfair in law.

Reasoning and decision: The EAT noted the Tribunal's clear findings that the employer genuinely believed the misconduct had occurred and that it had reasonable grounds after reasonable investigation. It held that the Tribunal erred by conflating the factual reason for dismissal with the question of fairness and by entertaining an alternative "real reason" hypothesis contrary to its earlier findings. The EAT accepted the legal proposition (drawing on established authority) that the question under section 98(4) is whether the employer acted reasonably in treating the established reason as sufficient to dismiss, not whether the employer acted reasonably in general. The procedural deficiencies identified by the Tribunal were not shown to have affected the sufficiency of the established reason. Consequently, the EAT set aside the Tribunal's unfair dismissal finding, substituted a judgment that the dismissal was fair, and dismissed the claim.

Appeal allowed. The Employment Appeal Tribunal held that the Employment Tribunal had erred in law by basing its fairness conclusion on a different factual hypothesis of a "real reason" after having found that the employer genuinely believed that the employee had committed gross misconduct following a reasonable investigation. On the facts found by the Tribunal, dismissal was within the range of reasonable responses and therefore fair; the EAT set aside the unfair dismissal finding and substituted a finding that the dismissal was fair.