Greater Glasgow Health Board v Stephen Mullen

Where a tribunal has found that an employer genuinely believed, on reasonable grounds and after a reasonable investigation, that the employee committed the alleged misconduct, it cannot assess fairness under section 98(4) on the inconsistent hypothesis that the employer’s real reason was different.

The statutory question is whether the employer reasonably treated the established reason as sufficient to dismiss. Procedural departures do not, without more, make a dismissal unfair. The identified defects must bear upon that question. On findings establishing serious misconduct, a dismissal may fall within the range of reasonable responses.

The employee, a supervisor, was summarily dismissed for gross misconduct after an allegation that he had shouted at and threatened a technician. The Employment Tribunal upheld his unfair-dismissal claim. It found that the employer genuinely believed the misconduct had occurred, had reasonable grounds for that belief, and had conducted a reasonable investigation.

It nevertheless held the dismissal unfair under section 98(4) of the Employment Rights Act 1996. It relied on delay, alleged procedural defects, the involvement of a manager in the disciplinary panel, and doubts about the real reason for dismissal. The employer appealed.

1. Appeal allowed. The Tribunal’s finding of unfair dismissal and its consequential awards were set aside. The EAT substituted a judgment that the dismissal was fair and the unfair-dismissal claim failed.

2. The Tribunal had expressly found that the reason for dismissal was the employer’s genuinely held belief that the employee committed the specified misconduct. It had also found reasonable grounds for that belief and a reasonable investigation. Those findings were incompatible with treating the employer’s real reason as possibly different when determining fairness under section 98(4) of the Employment Rights Act 1996.

3. Following Westminster Council v Cabaj [1996] ICR 960, the statutory inquiry was whether the employer reasonably treated the established reason as sufficient to dismiss. It was not a general inquiry into whether the employer had acted reasonably in every respect.

4. Not every departure from an agreed disciplinary procedure renders a dismissal unfair. Once the Tribunal’s impermissible hypothesis of a different real reason was removed, the procedural deficiencies it identified had no bearing on whether the established misconduct was a sufficient reason for dismissal. On the Tribunal’s findings, dismissal was the only conclusion properly available within the range of reasonable responses.

5. The purported notice-pay award also depended entirely on the unfair-dismissal finding rather than a separate contractual claim. It was therefore set aside with the basic and compensatory awards.

• Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the finding of unfair dismissal and substituted a judgment that the dismissal was fair: [2023] EAT 122.

• Employment Tribunal: Upheld the employee’s unfair-dismissal claim and awarded a basic award, compensatory award and an award described as notice pay. Its decision was set aside by the Employment Appeal Tribunal.