In Fuller v London Borough of Brent the Court of Appeal (“CA”) has upheld a Tribunal’s decision that the Claimant was unfairly dismissed for gross misconduct. The Employment Appeals Tribunal (“EAT”), which had overturned the Tribunal’s decision, had focused too narrowly on particular parts of the Tribunal’s judgment when it decided the Tribunal had substituted its own view of the misconduct, something that is not allowed in law. In the CA’s view, appellate courts and tribunals should not be over critical of Tribunal judgments but should read them ‘in the round’.
The Claimant, a bursar at a school for children with special needs, objected to the way a child was being restrained and refused to follow the head teacher’s instructions to leave the scene. She already had a verbal warning and was suspended and subsequently dismissed for gross misconduct. The Claimant brought a successful unfair dismissal claim in the Tribunal, but the Council appealed to the EAT and was successful. The EAT’s view was that the Tribunal had impermissibly put itself in the place of the employer by deciding that it would not have dismissed for gross misconduct. The Claimant appealed.
The CA noted that, on appeal, an appellate court will err if it substitutes its own view of the reasonable employer’s response for the view formed by the Tribunal without any error of law or perversity on the Tribunal’s part. Over-analysis of the reasoning process, being hypercritical of the way in which the decision is written and focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round, should all be avoided.
In this case, while the CA agreed that there were deficiencies in the Tribunal’s judgment, when read in a fair, reasonable and sensible way, in the proper context and in the round, it could be seen that the Tribunal had applied the required objective test. Although the Tribunal had unfortunately stated that it ‘felt’ that the behaviour at issue did not merit dismissal, it was clear from subsequent paragraphs that the Tribunal had in fact applied the correct objective assessment of the employer’s response.
This case demonstrates that it is still very difficult to succeed with appeals from Tribunal judgments. One of the reasons they can succeed is when a Tribunal substitutes its own view for that of the employer when assessing the fairness of the dismissal, rather than making an objective assessment as to what a reasonable employer would do. However, this case is a warning to the EAT that it has to be very careful when deciding if an appeal will succeed on this basis, as they can be accused of the very same thing.