Post Office (Consignia PLC) v Burkett [2003] EWCA CIV 748
Unfair dismissal cases in the Court of Appeal are less frequent now, but the role of the Employment Tribunal in assessing the reasonableness of an employer's decision to dismiss still causes problems. It can be counterintuitive to judge an employer's actions against a band of reasonable responses instead of the yardstick of how the Tribunal would have behaved in the same situation.
The case of Post Office v Burkett is authority that when deciding whether an employer had reasonable grounds for its belief in misconduct, a Tribunal must set out and analyse the facts as found by the employer at the time of the dismissal. It is an error of law to set out the facts as found by a Tribunal unless a clear distinction is drawn between what the Tribunal decides occurred, and what the Tribunal decides the employers thought occurred.
The case concerned a Post Office worker who had been employed for nearly 10 years. He had no disciplinary record. He was summarily dismissed for overfilling a vehicle with oil, resulting in the engine being blocked and exploding.
The Tribunal found that the vehicle had been seriously damaged by the employee and concluded that the Respondents carried out a proper procedure in investigating the incident. It therefore concluded that the first and third test referred to in British Home Stores v Burchell [1980] ICR 303 was satisfied as there had been a genuine belief and they had carried out a proper investigation. The remaining issue before the Employment Tribunal was whether The Post Office had in its mind reasonable grounds upon which to sustain that belief. The Tribunal's conclusion was that the Respondent did not have reasonable grounds for believing that the Applicant had deliberately overfilled his vehicle. Therefore the decision to dismiss him was not reasonable and his dismissal was unfair. In essence, the Tribunal's reasoning was that there was no evidence to support the conclusion that Mr Burkett had deliberately overfilled the vehicle.
The case was appealed to the Employment Appeal Tribunal. The main argument before the EAT was that the Employment Tribunal had incorrectly substituted its view for that of the employer when it concluded that the overfilling was accidental, rather than deliberate. It decided that the Tribunal had not evaluated the evidence for itself, but had considered the question that it had proposed, namely whether the employer had reasonable grounds on which to sustain the belief. It determined that, in those circumstances, the approach had been right and dismissed the appeal.
The Court of Appeal overturned the EAT's judgment. It considered that the Tribunal's finding of facts contained glaring omissions. It felt that the approach of the Employment Tribunal was incorrect in that it concentrated on the facts as it found them and not upon the facts that were before the employer and thus concluded that the appeal should be allowed and remitted the case back to the Tribunal.
Although the Tribunal in this case reminded itself of its obligation not to substitute its own decision for that of the employers, that is precisely what it then proceeded to do. The Tribunal effectively made up its own mind on the critical question of whether the overfilling of the vehicle was accidental or deliberate, and did so without full consideration of the material before the employers.