R Thomas v Brandpath UK LTD

In an unfair-dismissal claim, the employer must establish the actual reason which operated on the decision-maker’s mind and show that it was potentially fair. Fairness is then assessed under Employment Rights Act 1996, section 98(4), on a neutral burden of proof.

For an alleged misconduct dismissal, the tribunal must assess whether the employer’s belief, grounds and investigation fell within the band of reasonable responses. It must identify the conduct said to amount to misconduct and consider obvious further investigatory steps. Where dismissal relies on a final warning, the tribunal must also determine whether the warning was issued in good faith, had prima facie grounds and was not manifestly inappropriate.

The claimant, a purchase ledger clerk, was dismissed following an altercation with a colleague, concerns about her conduct during sickness absence, and an earlier first and final written warning issued after she did not attend a meeting.

The Employment Tribunal dismissed her unfair-dismissal complaint. It treated the altercation, together with the final warning, as sufficient to justify dismissal. The claimant appealed, contending that the Tribunal had failed to determine whether the warning was manifestly unfair and had failed properly to assess the adequacy of the employer’s investigation.

The central issue was whether the Tribunal had applied the statutory test for fairness under section 98 of the Employment Rights Act 1996.

1. Appeal allowed. By consent, the Employment Appeal Tribunal substituted a finding that the claimant had been unfairly dismissed and remitted remedy to the same Employment Tribunal.

2. The Employment Tribunal had identified that it needed to consider whether the final warning was manifestly unfair, but did not decide that issue. Its conclusion that the warning could be considered despite post-dating the altercation did not answer the distinct question required by Davies v Sandwell Metropolitan Borough Council, [2013] IRLR 374. This was an error of law.

3. The Tribunal also erred in its assessment of the investigation into the alleged misconduct. Although it found that the decision-maker genuinely considered the claimant’s behaviour inappropriate, neither the employer nor the Tribunal identified with sufficient clarity what she had done or said that was said to be misconduct. The finding that the incident would have escalated without managerial intervention lacked reasonable grounds.

4. A reasonable employer might have needed to interview the colleague to establish what request had been made, the claimant’s precise response, and why that response was inappropriate. The Tribunal did not properly ask whether further investigation was required within the band of reasonable responses, as the misconduct guidance in British Home Stores Ltd v Burchell, [1978] IRLR 379, required.

5. Grounds 1 and 2 succeeded. It was unnecessary to decide the perversity and procedural-unfairness grounds. Remedy was remitted, including any issues of Polkey reduction and contributory fault.

• Employment Appeal Tribunal: appeal allowed; unfair dismissal substituted and remedy remitted to the same Employment Tribunal ([2024] EAT 150).
• Employment Tribunal, Watford: judgment sent to the parties on 14 January 2022. The unfair-dismissal complaint was dismissed.