Tuesday 15 March 2011

General Guidance From Court of Appeal

[Thanks to Lionel Stride of Temple Garden Chambers for providing this case summary]

The Court of Appeal has handed down its decision in Fuller v London Borough of Brent, which was an appeal against the EAT's decision to overturn a finding of unfair dismissal in a misconduct case on grounds that the ET had substituted its own opinion for that of a reasonable employer. In upholding the appeal, and reinstating the ET's decision, Mummery LJ (giving the leading judgment) reiterated some useful principles pertaining to appeals:-

  • An appellate body must be on guard against substituting its own subjective response to the employee's conduct for the view formed by the ET: there must be an error of law or a perverse decision on the point;

  • It is therefore crucial that that the appellate body distinguishes between a real question of law and a challenge to primary findings of fact dressed up as law;

  • Although the ET judgment must be read carefully to check that the law has been correctly applied, there must not be a "fussy" reading producing "pernickety critiques". The Judgment should be read "in the round" without over-analysis of the reasoning process; being hypercritical of its style; or focusing on particular passages or turns of phrase.

  • Having found that there had been no error of law in the ET's judgment when read in the round, Mummery LJ proceeded to make three further comments of general application:-

  • When the ET asks a correct legal question (such as whether an investigation was reasonable in all the circumstances) it should give a specific answer to it in addition to discussion of the facts, law and argument. This would dissuade parties from false optimism as to the prospects of success on appeal;

  • An employee undergoing disciplinary action and facing possible dismissal, should normally participate in the process by complying with the employer's reasonable requests to provide statements, information and representations and to attend the hearing;

  • Employees who have concern about the way in which fellow employees perform their duties (whistleblowers), should raise the matter in the right quarters rather than intervening directly in work situations (by, as here, confronting the staff directly).

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