Court of Appeal reminds tribunals to avoid the substitution mindset

How often have you seen a tribunal remind itself that it must not substitute its own view for that of the employer, only to go on to do just that?

In London Ambulance Service NHS Trust v Small, the Court of Appeal reaffirms that in unfair dismissal claims, the function of a tribunal is to review the fairness of the employer’s decision, not to substitute its own view. Although the tribunal in this case repeatedly reminded itself that it must not re-try the factual issues or substitute its own view, the Court of Appeal says that is just what it did. The tribunal should have confined its consideration of the facts to the facts relating to the Trust’s handling of the dismissal, and not made its own findings as to matters which were in dispute in the internal proceedings.

Further, the Court of Appeal rejects the EAT’s conclusion that this was permissible because the tribunal was bound to make these findings of fact given that the employer argued in the alternative that the claimant was guilty of contributory fault. If the dismissal is properly found to be unfair applying the well known principles in BHS v Burchell and Post Office v Foley, then the tribunal is indeed obliged to make its own findings as to the claimant’s conduct, but such findings should not be allowed to seep into the tribunal’s reasoning as to the fairness of the dismissal in the first place. The Court of Appeal suggests that as a matter of good practice it might be advisable for tribunals to keep such findings of fact separate to avoid this.

The Court of Appeal also rejects the conclusion that the dismissal was procedurally unfair where the Claimant was not interviewed about the allegations against him until 10 weeks after the event.

[Thanks to Anya Palmer of Old Square Chambers, junior Counsel for the successful employer, for providing this case summary]