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Graham v DWP [2012] EWCA Civ 903

The Court of Appeal has handed down Judgment in Graham v DWP [2012] EWCA Civ 903.

Mrs Graham had 30 years exemplary service with the DWP. She was dismissed for gross misconduct. The Tribunal found the dismissal to be unfair. This was overturned by the EAT, who substituted a finding of fair dismissal. The facts of the case are relatively unexceptional and the main issue in the appeal is whether the EAT  was to overturn the finding of unfair dismissal and substitute a finding of fair dismissal.

However, paragraph 62 of the Judgment is of interest. It is not the main focus of the Judgment, but has the potential to be significant.

At first instance, an element of the reasoning finding the dismissal to be unfair was that following the allegations coming to light against the Claimant, she was moved to alternative duties, together with access to the computer system, which is inconsistent with an assertion that trust and confidence had been breached. The EAT expressly disagreed with this reasoning.

However, the Court of Appeal agreed that placing on alternative duties did not “sit well” with a loss of trust and confidence argument. Given that this is a Court of Appeal case rather than the EAT, this view will inevitably carry weight, even if it was meant as an aside by the Court.

It is good practice, particularly in large organisations for alternatives to suspension to be considered. However, it now appears that if an employer is going to run a ‘loss of trust and confidence’ style argument, such alternatives need to be consistent with the interim measures taken in relation to an employee.

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