Case law update: EEF successfully challenges ET who substituted its view for employer's

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EEF has successfully challenged an Employment Tribunal’s finding in favour of the employee in an unfair dismissal case. Instead of considering whether the employer acted within the range of reasonable responses, the Employment Tribunal substituted its own view.

Background

The case concerned an EEF member company who manufactures fasteners for the aerospace industry. The claimant was a long-serving employee, whose main task was to ensure that the results of various tests conducted on a variety of aircraft parts had been manufactured to the appropriate standards. Following a “whistleblowing” complaint to the US parent company, in which the claimant was alleged to have fabricated stress durability tests, the claimant (along with many other employees) was interviewed. During the interview the claimant admitted that he had falsified records in the way described by the whistle-blower, but that he did so with the knowledge and approval of his immediate line manager. Despite an extensive investigation, no evidence was found to suggest that the line manager was engaged in and/or authorised the falsification of test data. The claimant was dismissed for admitted and serious misconduct, and his dismissal was upheld on appeal.

Decision

The ET’s two lay members found that the claimant was unfairly dismissed. They also decided against any ‘Polkey’ deduction (a deduction made from a compensatory award on the basis that a claimant would have been dismissed even if the correct procedures had been followed). They found, however, that the claimant had contributed to his dismissal to the extent of 30%.ET decisions are made by majority, so the lay members’ decision stood even the though the Employment Judge thought the dismissal fair; alternatively, he would have made a finding of 100% contributory conduct and 100% Polkey deduction.

EEF took the case to the Employment Appeal Tribunal. The EAT agreed with the Employment Judge, the appeal was allowed and the claim dismissed. In coming to its decision the EAT found that the ET had failed to ask themselves the proper question of whether the employer acted outside the range of reasonable responses in dismissing the claimant; instead they had substituted their own view for that of the employer.

Comment

Whilst the facts of this case are not remarkable, it does serve as a helpful reminder that the EAT will be robust in allowing an appeal in circumstances where the ET has substituted its own opinion for that of the employer as to whether certain conduct is reasonable or not. The relevant test is whether the dismissal falls within the range of reasonable responses open to the employer, and the ET, in this case erred in departing from this.

Read the judgment

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