Employment Law Speed Read – 08/04/19

Facts

The Claimant was the Managing Director of a FCA-regulated company and his job was a regulated position under the Financial Conduct Rules. The Claimant had brought two tribunal claims against his employer. His first claim was brought in May 2015 and heard by the Employment Tribunal (ET) in November 2016. In dismissing the Claimant’s claims, the ET found that his evidence was “not credible in many respects” and “on lots of occasions evasive”, the ET found that he had not told the truth, or had misled the ET in a number of respects. The Claimant brought his second ET claim in September 2016.

On receiving the judgment for the first ET claim, the Respondent suspended the Claimant pending disciplinary proceedings, without holding an investigation meeting. The Respondent relied on the tribunal’s findings and the Claimant’s responses and dismissed him because of the credibility issues found by the ET in the first claim. The Claimant then brought his third claim, complaining that his suspension, dismissal and the Respondent’s refusal to hold an appeal hearing against his dismissal amounted to whistleblowing detriment, victimisation and unfair dismissal.

Employment Tribunal

The ET considered whether the Respondent acted reasonably in dismissing the Claimant by asking whether the dismissal was within the range of reasonable responses. The ET found that it was, having regard to the FCA rules, the Respondent’s regulated status and the requirement that the Claimant be an approved person. On the question of the Claimant’s appeal, the ET found that “unusually”, holding such an appeal would not have made any difference. The Claimant’s claims were dismissed.

Employment Appeal Tribunal

The Claimant appealed on 17 grounds of which only 2 were considered. On the first ground, the Claimant argued that there was an error of law in the ET’s finding that it was reasonable of the Respondent to rely on the findings of the first ET and that the findings meant that there were no further investigations which could be carried out. The EAT found that the ET had not erred in law – the two stages of investigation and disciplinary meetings are not part of the statutory test, nor, are they required by the ACAS code. The question for the ET to consider was whether the Respondent’s decision was within the range of reasonable responses.

On the Claimant’s second ground of appeal – that the ET had erred in law in holding that a failure to hold an appeal did not make the decision unfair, the appeal was allowed. The EAT held that the ET had erred in law in its approach to the appeal. The EAT considered that the ET had described the failure as wholly irregular, contrary to best practice, a breach of the ACAS code and contrary to the Respondent’s own appeal process. Whilst it was open to the ET to hold that the dismissal was not unfair despite an appeal not being held, the ET failed to make sufficient findings to justify its decisions that not having an appeal would make no difference. The Claimant’s appeal on this ground was therefore upheld.

Comment

This case is a useful reminder of how a Tribunal will view whether a decision to dismiss falls within the range of reasonable responses by the employer. However, this case is highly fact specific and whilst the decision to not hold an investigation meeting in this case did not mean that the dismissal was unfair, the decision-making process was still carefully scrutinised by the tribunal in any event.