M Dowding v The Character Group PLC

In assessing ordinary unfair dismissal, the tribunal must decide whether the employer had conducted a reasonably sufficient investigation overall. Fairness does not require a separate pre-disciplinary investigation, a meeting with the employee before charges, or different managers for investigation and dismissal in every case. Failure to provide all evidence may create a risk of unfairness, but fairness remains a fact-sensitive assessment under section 98(4).

Under the Employment Tribunal Rules of Procedure 2013, a tribunal may direct detailed assessment on the indemnity basis. It must, however, identify why the case crosses the higher threshold applicable to such an order. A costs award must also explain why the amount awarded is justified by the nature, gravity and effect of the unreasonable conduct.

The claimant, the respondent company’s finance director, was dismissed in 2017. He brought complaints of protected-disclosure detriment and dismissal, ordinary unfair dismissal, and claims concerning his written terms. The Employment Tribunal dismissed the whistleblowing and ordinary unfair dismissal complaints. It found that the claimant had not made disclosures which he believed were in the public interest, and that dismissal for a breakdown of trust and confidence caused by his conduct was fair.

The tribunal later dismissed the claimant’s costs application. It ordered him to pay capped costs of £127,563.70, subject to detailed assessment on the indemnity basis, and £20,000 for the respondent’s costs of the costs hearing.

The claimant appealed both decisions. The central issues were the fairness of the investigation and dismissal process, and the tribunal’s approach to costs, including indemnity assessment and the amount of the costs-of-costs award.

1. Liability appeal dismissed. The tribunal was entitled to apply the Burchell approach to a dismissal founded on a conduct-related breakdown of trust and confidence. It had correctly directed itself not to substitute its own view and, read as a whole, its reasons adequately found that the dismissing and appeal officers genuinely and reasonably held the relevant beliefs. The dismissal was within the band of reasonable responses.

2. There is no legal rule requiring a separate pre-disciplinary investigation in every case, or requiring the manager who decides to raise charges to be different from the manager who conducts the disciplinary hearing. The material question is whether the employer has carried out a reasonably sufficient investigation by the time of dismissal, including the appeal process where relevant.

3. The respondent’s failure to supply the claimant with the email dossier in the same form as supplied to the dismissing officer did not necessarily make the dismissal unfair. The charges gave sufficient information; the events and emails were recent and substantially known to the claimant; and he had a full opportunity to respond. Fairness under section 98(4) remained fact-sensitive.

4. Costs appeal allowed in part. The tribunal had power under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to direct a detailed assessment on the indemnity basis. The incorporation of the Civil Procedure Rules 1998 permits either standard or indemnity assessment. If the direction is silent, the standard basis applies.

5. However, an indemnity direction in tribunal proceedings requires a higher threshold than the ordinary threshold for a costs order. The tribunal did not show whether it had applied that threshold, or which features justified indemnity assessment. That direction was quashed.

6. The tribunal also failed adequately to explain why the claimant’s conduct justified awarding the maximum £20,000 claimed for the costs hearing. It had to consider the nature, gravity and effect of the conduct when fixing the amount, though it did not need to establish a precise causal attribution of costs. The basis of assessment and the amount of the costs-of-costs award were remitted to the same, or as nearly the same, tribunal panel.

• Employment Appeal Tribunal: Allowed the appeal from the costs decision in two limited respects and dismissed the liability appeal: [2024] EAT 153.
• Employment Tribunal, London South: Dismissed the protected-disclosure and ordinary unfair dismissal complaints; later made costs orders for the respondent. No citation was stated in the judgment.