Brian Burgess v Robert Kempson
[2023] EWHC 2216 (Ch)
Greater Glasgow Health Board v Stephen Mullen
12 September 2023
[2023] EAT 122
Employment Appeal Tribunal
A worker was fired for being aggressive. A court initially said the firing was unfair because of mistakes during the investigation. A higher court disagreed, saying the original court wrongly focused on the wrong reason for firing, and that the firing was fair considering the worker's bad behaviour.
Key Facts
- •Stephen Mullen was summarily dismissed for gross misconduct on 28 October 2021 after an incident on 11 March 2021 where he allegedly shouted at and threatened a colleague.
- •The Employment Tribunal (ET) initially found the dismissal unfair due to procedural deficiencies in the investigation and disciplinary process.
- •The ET identified procedural flaws including a delay in informing Mullen of the allegations, an unduly lengthy investigation, and the involvement of a manager with prior involvement in the case on the disciplinary panel.
- •The ET also raised concerns about inconsistencies in the evidence regarding the reasons for dismissal.
- •Mullen did not appear at the appeal hearing.
Legal Principles
In unfair dismissal claims, the ET must determine if the reason for dismissal was a genuinely held belief in misconduct following a reasonable investigation. If so, the fairness hinges on whether the dismissal fell within the range of reasonable responses.
Employment Rights Act 1996, section 98(4)
The ET cannot base its fairness conclusion on a hypothetical 'real reason' for dismissal if it has already established the employer's genuine belief in a specific reason.
Westminster Council v Cabaj [1996] ICR 960
Not every procedural departure renders a dismissal unfair; the question is whether the employer acted reasonably in treating the established reason as sufficient for dismissal.
Westminster Council v Cabaj [1996] ICR 960
Outcomes
The EAT set aside the ET's finding of unfair dismissal.
The EAT found the ET erred by basing its fairness assessment on a speculative 'real reason' for dismissal, inconsistent with its earlier finding of the employer's genuine belief in the established reason. The procedural defects, while noted, did not negate the sufficiency of the established reason for dismissal.
The EAT dismissed Mullen's unfair dismissal claim.
The EAT concluded that the dismissal, based on the established reason and considering the range of reasonable responses, was fair.