Damien Burke v The Harrow Club

Under section 98 of the Employment Rights Act 1996, a tribunal must identify the employer’s actual factual reason for dismissal, or the principal reason if there is more than one, before assessing fairness. The reason may be composite, and fairness is assessed by reference to the reason actually held. Whether conduct amounts to first aid depends on its full context. It was open to a tribunal to accept an employer’s view that a youth worker gave unauthorised first aid where he assisted an injured young person who had lost a tooth and a qualified first aider was present. The EAT found no error of law or perversity.

Damien Burke was a longstanding youth worker employed by The Harrow Club. After a young person returned to the club injured from a fight, Mr Burke gave him tissue to wipe blood and helped look for a lost tooth. The Club dismissed him for, among other matters, administering first aid without authorisation.

The Employment Tribunal dismissed Mr Burke’s unfair dismissal claim. On appeal, only the contention that the Tribunal erred in treating his actions as first aid was permitted to proceed. The central issue was whether, in the circumstances found, the employer’s conclusion that Mr Burke had given first aid was legally open to it.

1. Appeal dismissed. The only permitted ground concerned the finding that Mr Burke had given first aid. The EAT also explained the statutory framework for identifying the reason for dismissal. Under section 98 of the Employment Rights Act 1996, the tribunal must identify the actual factual reason, or principal reason, operating on the decision-maker. A category such as conduct is not itself the factual reason. The reason may comprise several factual matters, in which case fairness is assessed against the whole reason actually held. The EAT drew on Croydon Health Services NHS Trust v Beatt [2017] ICR 124, Smith v Glasgow DC [1987] I.C.R. 796 and Ms D Robinson v Combat Stress UKEAT/0310/14/JOJ, among other authorities.

2. The Employment Tribunal had identified three grounds for dismissal but had not expressly decided whether they were separate reasons or components of one composite reason. Since that issue was not raised by the respondent, the EAT assumed for the appeal that the grounds formed a composite reason. On that basis, an error concerning the first aid component could affect the fairness of the dismissal, so the appeal was not academic.

3. On the permitted ground, the EAT considered the full circumstances. The Tribunal had not treated the tissue alone as the whole of Mr Burke’s conduct: he knew the young person had lost a tooth, and the Tribunal considered that he should have ensured the injury received proper medical attention. A qualified first aider was present, so this was not an emergency in which Mr Burke had to act because that person was unavailable. It was open to the employer to treat his actions as first aid given without authorisation and as misconduct. The Tribunal’s conclusion disclosed no error of law and was not perverse.

• Employment Appeal Tribunal: The sole permitted ground of appeal was dismissed: [2026] EAT 141 .
• Employment Tribunal, London Central: The Tribunal dismissed the unfair dismissal complaint. Its judgment followed a hearing on 30 and 31 October 2024; written reasons were sent on 18 December 2024. No citation is stated in the judgment.