A case of bad faith
Labour & European Law Review Weekly Issue 446 18 November 2015
In cases of misconduct resulting in dismissal, tribunals have to assess the employer’s conduct and decision-making against a “range of reasonable responses”. In Secretary of State for Justice and Lown, the Employment Appeal Tribunal (EAT) held that tribunals must put an allegation of “bad faith” directly to the employer so that they have the opportunity to respond to it.
Mr Lown, a prison officer for a number of years, was involved with two other officers in a “planned intervention” to remove a prisoner from his cell. The incident was recorded on CCTV and witnessed by a number of other people. During the intervention, the officers used a control and restraint technique because the prisoner had refused to follow instructions.
Following the incident, one of the witnesses complained that a member of the team had struck the prisoner on his back with a clenched fist. Although the CCTV footage was inconclusive, Mr Lown was subsequently suspended and dismissed following an investigation. As part of the investigation, the governor relied on evidence from an expert on the use of force although he had not been present at the time. A nurse who had been present was not asked to give evidence at the disciplinary hearing, nor was the prisoner.
Although the tribunal found that the employer had conducted a reasonable investigation, it was critical of the later stages of the disciplinary process. In particular it criticised the governor for downplaying the evidence of witnesses which backed up Mr Lown’s version of events. This included the prisoner himself who had not complained in his statement of being punched in the back and the nurse who was not called to give evidence.
Overall, it concluded that the employer was determined to find Mr Lown guilty of gross misconduct, whatever the evidence in his favour, and had therefore acted in “bad faith”. It upheld his claims of unfair and wrongful dismissal; and as the process was “substantively unreasonable” it held that there were no grounds to reduce Mr Lown’s compensation (known as a Polkey reduction) in relation to his conduct.
The employer appealed that the decision was perverse, on the basis that the tribunal had not put the issue of “bad faith” to their witnesses.
The EAT agreed that, having put so much emphasis on the issue of bad faith, the tribunal should have put the allegation directly to the employer so that they had the opportunity to respond to it. As the finding of bad faith was central to the tribunal’s reasoning, this failure rendered the conclusion unsafe.
Even if it could be persuaded that the tribunal’s finding was part of a broad assessment of credibility that it was entitled to make, the EAT held that it would still find this was a case in which the tribunal had fallen into a “substitution mindset”. For instance, rather than asking “whether it was within the range of reasonable responses of the reasonable employer in these circumstances to consider it appropriate to call on expert testimony”, the tribunal decided for itself that it was inappropriate to call on expert evidence when there were witnesses. The EAT was critical of the tribunal’s failure to fully consider whether the employer had a reasonable belief that Mr Lown was guilty of the alleged misconduct.
The EAT concluded therefore that instead of asking whether the actions of this employer fell within the range of reasonable responses, the tribunal had seen its role as laying down the only permissible standard of the reasonable employer. The employment tribunal should also have considered whether it was appropriate to make a Polkey reduction in relation to the finding of unfair dismissal.
The matter has been remitted back to a new employment tribunal for a fresh hearing.
This decision does not set a new precedent but is a reminder that a tribunal hearing is not an opportunity for an employee to have another chance to put forward all their arguments about why they should not be dismissed.
Employment tribunals have to walk a fine line when determining whether an employer has acted within the range of reasonable responses rather than what it would do in the same circumstances. The range of reasonable responses can be wide and varied and can sometimes include dismissing and not dismissing the employee.
If an employee has significant evidence to support an allegation that the employer had pursued the disciplinary proceedings against them in bad faith then it would make sense to make these allegations to the employer at an early stage.