R Thomas v Brandpath UK LTD

The Employment Appeal Tribunal allowed the appeal because the Employment Tribunal erred in law in two material respects. First, it failed to determine whether a prior final written warning was manifestly unfair despite having identified that issue. Second, it failed properly to apply the Burchell principles by not assessing whether the respondent's investigation fell within the band of reasonable responses required in a misconduct dismissal. The judgment applies section 98 of the Employment Rights Act 1996 governing unfair dismissal and related guidance on identifying the reason for dismissal and assessing fairness (including the Burchell, Croydon/Beatt and Davies authorities). By consent the EAT substituted a finding of unfair dismissal and remitted remedy to the Employment Tribunal to consider Polkey and contribution issues.

Background and nature of the claim:

• The appellant brought a complaint of unfair dismissal arising from disciplinary proceedings and dismissal in 2016. The respondent relied on allegations of misconduct (an altercation with a colleague and deficiencies in sickness reporting/co‑operation) and a prior final written warning.

Procedural posture:

• The matter was heard at first instance by the Employment Tribunal, which dismissed the unfair dismissal complaint in a judgment sent on 14 January 2022. The appellant appealed to the Employment Appeal Tribunal. The EAT heard the appeal on 22 August 2024.

Issues framed by the court:

1. What was the reason for dismissal and whether it was a potentially fair reason under section 98 Employment Rights Act 1996;
2. Whether the Employment Tribunal had properly applied the Burchell guidelines when assessing whether the employer had reasonable grounds and carried out a reasonable investigation;
3. Whether the prior final written warning was manifestly unfair and therefore should not have been taken into account; and
4. Ancillary arguments including perversity and procedural fairness in holding a disciplinary hearing in the claimant's absence.

Material facts and tribunal reasoning:

• On 31 May 2016 there was an altercation between the claimant and a colleague, Mr Halpin. The claimant did not attend a meeting on 8 June 2016 and was given a first and final written warning for failing to attend. The claimant was on extended sick leave thereafter; a disciplinary hearing proceeded in her absence and she was dismissed by letter dated 4 October 2016 with an attached note dated 27 September 2016 setting out findings.
• The Employment Tribunal directed itself by reference to section 98 ERA and considered various authorities including Burchell and Sainsburys v Hitt, but it did not explicitly determine whether the final written warning was manifestly unfair and it gave only limited consideration to whether the investigation met the standard of the band of reasonable responses.

Court reasoning and disposition:

• The EAT held that the Employment Tribunal erred in law by failing to decide the manifest unfairness of the prior final warning after identifying it as an issue, and by failing properly to consider whether the employer's investigation into the Halpin incident fell within the band of reasonable responses (Burchell). The EAT noted the absence of clear findings about what the claimant had said or done and that further investigation (for example interviewing Mr Halpin about what had been asked of the claimant) was an obvious possibility for a reasonable employer.
• Because the proceedings had been lengthy and the respondent conceded that, if the appeal succeeded, it would accept that the dismissal was unfair, the EAT substituted a determination of unfair dismissal and remitted the matter to the Employment Tribunal to determine remedy, including any Polkey and contribution issues.

Appeal allowed. The Employment Tribunal erred in law by failing to determine whether the prior final written warning was manifestly unfair and by failing properly to assess whether the employer's investigation fell within the band of reasonable responses under the Burchell guidance. By consent the EAT substituted a finding of unfair dismissal and remitted remedy to the Employment Tribunal.

Appeal from the Employment Tribunal (Watford) judgment (sent 14 January 2022) that dismissed the claimant's unfair dismissal complaint. The Employment Appeal Tribunal ([2024] EAT 150) heard the appeal on 22 August 2024 and allowed it, substituting a finding of unfair dismissal and remitting remedy to the Employment Tribunal.