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Particularly adept when it comes to advising on technical and complex employment law problems.

Misconduct Dismissals & Appeals

HHJ McMullen QC, sitting with members has handed down Judgment in Kantoh v Kent & Medway NHS & Social Care Partnership Trust (2011) UKEAT/0526/10/ZT .  The case is of interest because it represents a further example of an Employment Tribunal incorrectly applying the law in respect of conduct dismissals.

I would suggest there are two areas of practical application.

The first is a reminder of the need to apply the range of reasonable responses test and that in some circumstances, this can be a legitimate ground of appeal for Claimant’s as well as the more standard argument of substitution advanced by Respondent’s. It has been emphasised since the Judgment of Mummery LJ in the Court of Appeal in London Ambulance Service NHS Trust v Small [2009] IRLR 563 that a Tribunal should separate its fact finding role in respect of those matters which require the application of one test (the range of reasonable responses) and those which require the application of a different test (e.g. wrongful dismissal, contribution, Polkey etc). In the present case, the findings of fact against the Claimant were “firm and prejudicial” in circumstances whereby there “was no need for the Tribunal to express itself so strongly as to the Claimant’s guilt.” (para 30)

The second is the reasoning of Underhill P expressed at the Preliminary hearing and recorded at paragraph 5 of HHJ McMullen QC’s Judgment. This extract demonstrates the mindset of the EAT to ‘reasons’ appeals, often called ‘Meek’ appeals after the case of Meek v City of Birmingham District Council [1987] IRLR 250.

In the present case, the Tribunal at first instance appears to have dealt with the Claimant’s case in a cursory manner. The substance of the case advanced has not been dealt with in the written reasons. Appellant’s too readily claim to the EAT that every point raised on their behalf had not been dealt with, this case was different, the  Tribunal failed to deal with the specific criticisms put before it.

So far, this is relatively straightforward and unexceptional. However, some specific points emerge which may be of interest. In particular:

  • At paragraph 25 HHJ McMullen QC highlights the case of Greenwood v NWF Retail Ltd (2011) UKEAT/0409/09/JOJ . Greenwood is a detailed Judgment in the Employment Appeal Tribunal concerning reasons, but HHJ McMullen QC appears to be treating it as the authority of substance to cite in the Employment Appeal Tribunal. Those of us that appear in the EAT will need to pay particular attention to Greenwood in the future.
  •  The adoption of ‘shorthand’ is criticised (para 39).
  • Parties should be prepared to challenge Judgments which state “there was a reasonable and careful investigation” without elaboration. In my view, this is all the more so where the allegations affect an individual’s ability to continue in their chosen profession.

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