When considering whether a dismissal for gross misconduct is fair, tribunals have to consider whether the employer genuinely believed that the person was guilty of the misconduct and whether dismissal was a reasonable response. In Tai Tarian Ltd v Christie, the Employment Appeal Tribunal (EAT) held that it was not unreasonable for the employer to rely on the evidence of an anonymous witness.
Following a complaint by a tenant that Mr Christie had made homophobic comments, the housing association carried out two interviews with the tenant (who had requested anonymity) by two different managers. At an investigatory interview Mr Christie was given a record of the second interview but not of the first.
Following a disciplinary hearing, Mr Christie was summarily dismissed for gross misconduct by one of the deputy directors. At an appeal hearing conducted by the CEO, Mr Christie expressed concern that the complainant in this case might have a grudge against him. As it turned out, this tenant lived at a property where Mr Christie had not been able to do an earlier repair job in the way that the tenant had wanted but this information was not disclosed to Mr Christie.
Although the CEO accepted the character references submitted by Mr Christie and acknowledged that these confirmed he was not homophobic, she rejected his appeal on the basis that they did not mean the allegation made against him was false.
Mr Christie lodged a claim of unfair dismissal.
Upholding his claim, the tribunal took the view that, by virtue of having accepted evidence demonstrating that Mr Christie was not in fact homophobic, the CEO had failed to establish that she held a genuine belief that he was guilty of the conduct alleged.
Even if she did hold that belief, the tribunal concluded that it was outside the band of reasonable responses for the housing association to persist in relying on the tenant’s anonymous account, given that she had not been interviewed by either the deputy director or the CEO.
Although a reasonable employer might conclude that the tenant’s identity should be kept anonymous, it was outside the range of reasonable responses to fail to take other steps to ensure Mr Christie had a fair hearing by, for example, looking for changes in the two accounts that the tenant had given and consider why she might have been motivated to embellish what she had said.
Upholding the housing association’s appeal, the EAT held that it was perverse for the tribunal to assume that just because the CEO accepted that Mr Christie was not homophobic, it followed that she could not believe that he had made homophobic remarks. The tribunal had inferred, without any real evidence, that her stated belief (that he had made the remarks) could not be genuine.
As for the issue of fairness, the EAT held that there was no real basis for the tribunal’s conclusion that the tenant had embellished her account, not least because the tribunal itself had only found “slight differences” between the two interviews.
In addition, although it was entitled to criticise the housing association for not allowing Mr Christie to see both sets of interview notes, the guidance provided in Linfood Cash and Carry v Thomson and ors made clear that there has to be a good reason “based on logical and substantial grounds” for an employer not to rely on the evidence of a particular witness. In this case, it was not clear why the tribunal thought the employer should not rely on the tenant’s evidence.
The EAT therefore remitted the matter to a newly constituted tribunal for rehearing.