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An employment tribunal's finding of unfair dismissal was not perverse but it had erred in failing to make a finding on the employer's argument that the employee had contributed to his own dismissal. A deduction of 25 per cent was made from the employee's basic and compensatory awards because, in approving invoices without supporting documentation, he had contributed to his own dismissal.
The appellant NHS trust appealed against a decision that it had unfairly dismissed the respondent (B).
B had worked for the trust for approximately 28 years. B was charged with misconduct arising out of his relationship with a particular contractor (X). B was found guilty of three charges: (i) coercing X into employing his brother and nephew on work done for the trust; (ii) improperly authorising invoices from X without supporting documentation; (iii) improperly assisting X in the tendering process operated by the trust. The employment tribunal found that B's dismissal was unfair because the trust had not carried out a reasonable investigation and the dismissal procedure was flawed. The trust argued that B had contributed to his own dismissal but the tribunal made no finding on the contribution argument.
The trust submitted that the tribunal had substituted its view for that of the employer and its conclusion was perverse.
HELD: (1) The tribunal should not substitute its view for that of the employer. The test was whether the employer acted within the range of reasonable responses. That test applied to procedural considerations, including the reasonableness of the employer's investigation, as well as substantive matters including the appropriateness of the sanction of dismissal. Just as it was wrong for the tribunal to substitute its own view, it would be equally wrong for the Employment Appeal Tribunal to substitute its own judgment for that of the tribunal under the guise of perversity, North West London Hospitals NHS Trust v Bowater  EWCA Civ 63,  I.R.L.R. 331 and Chambers-Mills v Allied Bakerie considered. The tribunal had not fallen into the substitution trap. It had found that the trust failed to carry out a reasonable investigation, specifically into B's case that X had an ulterior motive for accusing him of coercion because X was himself guilty of fraudulent activity. The trust's dismissal letter acknowledged that B had raised the issue of X's integrity with his line manager but the investigation failed to follow up that line of enquiry. No additional enquiry was made by the disciplinary or appeal panels. There was no basis in law for interfering with the tribunal's finding of unfair dismissal (see paras 4-5, 8-11 of judgment). (2) The tribunal had found that B should not have approved X's invoices without supporting documentation. Accordingly, he was guilty of blameworthy conduct which materially contributed to his dismissal. The appropriate level of contribution was a 25 per cent reduction in both the basic and compensatory awards (paras 12-15).
Appeal allowed in part.
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