Brian Burgess v Robert Kempson
[2023] EWHC 2216 (Ch)
R Thomas v Brandpath UK LTD
22 August 2024
[2024] EAT 150
Employment Appeal Tribunal
An employee was fired. The first court said it was fair. The appeals court disagreed, saying the first court didn't properly investigate if the employer acted reasonably or fairly. The employer agreed to pay compensation, and a new hearing will decide how much.
Key Facts
- •Ms R Thomas (Appellant) was dismissed by Brandpath UK Ltd (Respondent) in 2016.
- •The dismissal followed a disciplinary hearing held in Ms Thomas's absence due to prolonged sickness.
- •The reasons for dismissal cited were an altercation with a colleague (Mr Halpin) and inadequate cooperation regarding sickness absence reporting.
- •A prior final written warning had been issued to Ms Thomas for insubordination.
- •The Employment Tribunal dismissed Ms Thomas's unfair dismissal claim.
- •Ms Thomas appealed the Tribunal's decision.
Legal Principles
Unfair dismissal claims are governed by Section 98 of the Employment Rights Act 1996 (ERA), requiring the employer to show the reason for dismissal and that it was a fair reason.
Employment Rights Act 1996, Section 98
The 'reason' for dismissal refers to the factors influencing the decision-maker.
Croydon Health Services NHS Trust v Beatt [2017] ICR 124
In misconduct dismissals, the Burchell guidelines assess whether the employer had a reasonable belief in the employee's guilt, based on reasonable grounds and investigation.
British Home Stores Limited v Burchell [1978] IRLR 379
While Burchell provides guidance, the fundamental principles are in Section 98 ERA. Fairness is determined on a neutral burden of proof.
Boys and Girls Welfare Society v McDonald [1997] ICR 693
An Employment Tribunal generally won't reconsider prior warnings unless they were manifestly unfair.
Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374
The Tribunal must consider whether the employer acted reasonably in treating the conduct (including prior warnings) as sufficient reason for dismissal.
Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374
In assessing fairness, the Tribunal considers whether the investigation fell within a band of reasonable responses.
Sainsburys Supermarket Ltd v Hitt [2002] EWCA Civ 1588
Outcomes
The Employment Appeal Tribunal (EAT) allowed the appeal.
The EAT found the Employment Tribunal erred in law by not determining whether the prior warning was manifestly unfair and by failing to properly apply the Burchell guidelines regarding the adequacy of the investigation.
A finding of unfair dismissal was substituted by consent.
The respondent conceded unfair dismissal given the EAT's decision.
The case was remitted to the Employment Tribunal to determine remedy.
To assess compensation, including consideration of Polkey deductions and employee contribution.