Kervin & Barnes’ Employment Appeal Tribunal Success

13 November 2014

Kervin & Barnes (Gareth Kervin and Lucy Truscott) recently acted for P&O Ferrymasters at the Employment Appeal Tribunal (EAT) in the company’s successful appeal against a Cardiff Employment Tribunal judgment. The EAT judgment came out last week and can be found here.

In November 2013, the Employment Tribunal found in favour of the Claimant – regarding his unfair dismissal claim. Parts of the judgment were unusual in that the Employment Judge appeared to have reached his own conclusions as regards the facts of the case rather than assess whether the company’s conclusions (after extensive internal investigations and an expert’s opinion) were reasonable in all the circumstances having regard to the ‘hypothetical reasonable employer’. The claim stemmed from a gross misconduct dismissal after alleged serious breaches of health and safety by the Claimant (which were disputed by him). The company had gone to considerable lengths to ascertain how significant damage was caused to a crane that the Claimant was working on. The accumulated evidence pointed to there being two health and safety incidents – a minor one which the Claimant reported to the company and a major one which the Claimant did not report and subsequently denied. The Claimant argued that the former, minor incident caused the significant damage but the evidence of others including an expert suggested that was not plausible.

At Tribunal the Employment Judge referenced the philosophical concept of ‘Occam’s razor’ (summarised in para. 29 of the EAT judgment, but essentially noting that a straightforward conclusion with fewer assumptions is more likely than one with more assumptions built in) in reaching a conclusion that there had been only one health and safety incident. Following the company’s appeal, conducted by Kervin & Barnes with Andrea Chute as counsel, HHJ Richardson at the EAT found that this demonstrated a “substitutionary mind-set” and therefore an incorrect approach. As the scope for the EAT to substitute its own judgment (here, for example, that of a fair dismissal) is very limited, the successful appeal will now lead on to a re-hearing of the case which has been remitted back to the Employment Tribunal.

The case is a useful reminder of what HHJ Richardson referred to as “the different roles of the Employment Tribunal and the Employment Appeal Tribunal”. He specified: “It is the task of the Employment Tribunal […] to apply section 98(4) [of the Employment Rights Act 1996].  [The Employment Judge] must apply the objective standard of the reasonable employer to all aspects of the dismissal: investigation, process, fact-finding and sanction.  [The Employment Judge] must recognise that in many, though not necessarily all, cases there may be a band or range of ways in which a reasonable employer may act.

If you have any on-going or pending matters regarding misconduct investigations and/or dismissals then please contact our team by clicking here or telephone us on 0203 178 5360.