UKEAT 0187 - London Borough of Sutton v. Kester

An appeal against an employment tribunal's finding of unfair dismissal was allowed where the tribunal had substituted its own opinion of the facts before it rather than examining what was within the reasonable range of responses which it was open to an employer to take.

The appellant local authority appealed against a decision that it had unfairly dismissed the respondent former employee (K). K had been dismissed after facing disciplinary charges relating to recruitment, financial mismanagement of his department and failing to manage office problems. The tribunal held that the local authority's decision to dismiss K was beyond the band of reasonable responses which it was open to an employer to take. The local authority argued that the tribunal had misdirected itself as to law and had substituted its own opinion of the facts before it. The local authority submitted that in doing so, the tribunal had ignored its case as set out in the letter of dismissal and had failed to examine the reasonableness of its actions. The local authority further argued that the tribunal had ignored fundamental evidence relevant to the issues before it, reached a decision which was perverse, had not given proper weight to all the documentation in the case, and had not done justice to the local authority's own investigation into the issues.

HELD: (1) It was clear that the tribunal thought that K had not been dealt with fairly by the local authority. There was a sense of outrage on K's behalf which permeated the whole decision. Throughout the decision, the tribunal made judgements about its view of the matter, and it substituted its own opinion for that of the evidence despite saying specifically that it had not done so. The tribunal's approach was not in accordance with the guidelines in British Home Stores Ltd v Burchell (1980) ICR 303, and it did not do justice to the complexity of the issues raised in the case, Burchell applied. (2) Whilst the general charge of perversity was made out, it could not be said that the findings reached by the tribunal were perverse in the way alleged. (3) The case was remitted for rehearing before a differently constituted tribunal.

Appeal allowed