Nugent Care v Boardman

Tribunals must test fairness of a misconduct dismissal by asking whether the employer carried out a reasonable investigation and genuinely believed on reasonable grounds that the employee was guilty, not by re‑weighing evidence as a rehearing. Rather than substitute its own view, the tribunal must assess whether the employer's decision fell within the band of reasonable responses. Where earlier procedural defects are relied on, the tribunal must consider the whole disciplinary process, including any appeal, to decide overall fairness.

The claimant, a teacher, was summarily dismissed for alleged assault of a pupil. An Employment Tribunal found the dismissal unfair, mainly because the disciplinary panel and the appeal panel did not view a police video and because the panel inspected the classroom in the claimant's absence. The employer appealed to the Employment Appeal Tribunal against that finding. The EAT was asked to consider whether the ET had applied the correct legal test, made adequate factual findings, and whether it impermissibly substituted its own view for that of the employer. The EAT allowed the employer's appeal and remitted the matter for rehearing, dismissing the claimant's cross‑appeal.

1. Outcome: The appeal is allowed and the cross‑appeal dismissed. The matter is remitted for re‑hearing before a fresh tribunal (see paras [43]; [final section]).
2. The correct statutory test requires the tribunal to determine whether the employer carried out a reasonable investigation and genuinely believed on reasonable grounds that misconduct occurred, and whether dismissal fell within the band of reasonable responses (applying the Burchell approach and its modern restatements) (see paras [16]–[18]; "The Law" section).
3. A tribunal must not substitute its own view of what was the right decision for that of the employer. The inquiry focuses on the employer's conduct and decision‑making, not a rehearing of the merits (see paras [16]–[18]; discussion).
4. When an employee exercises an internal appeal, the tribunal must consider the fairness of the whole disciplinary process, including the appeal. Failure to do so is an error of law (applying Taylor v OCS and related authorities) (see "Discussion and Conclusions").
5. The ET's decision was flawed. It contained insufficient and unclear factual findings about the investigation, the disciplinary hearing and, critically, the appeal. The tribunal's reasoning was fragmentary and used imprecise language suggestive of substitution (for example, saying the employer was "insufficiently certain" or could not "feel safe"). Those defects rendered the ET's conclusion unsafe (see paras [35]–[43]; discussion).
6. Although the ET erred, the EAT rejected the employer's perversity challenge. Given the deficiencies of the ET's reasoning and findings, it was not possible to say that only one decision was reasonably open on the evidence. Dobie principles did not justify upholding the ET's decision (see discussion).
7. Procedural directions: The case is remitted for re‑hearing. The EAT suggested case management and pre‑hearing directions by the Regional Employment Judge to assist a fresh tribunal.

• Employment Appeal Tribunal: Nugent Care v Boardman [2010] UKEAT 0277_09_2505 — appeal allowed; cross‑appeal dismissed; remitted for re‑hearing (25 May 2010).
• Employment Tribunal (Liverpool): Reserved judgment upheld claimant's complaint and found unfair dismissal (judgment dated 28 April 2009) — reversed in part by this EAT judgment.