"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
In Secretary of State for Justice v Lown, the Employment Appeal Tribunal (the “EAT”), in overturning the first instance decision that Mr Lown had been unfairly dismissed, issued a reminder as to the proper procedural approach Tribunals should adopt when considering unfair dismissal on grounds of misconduct claims.
Mr Lown, a prison officer with over 12 years’ service, was involved in a planned intervention with a prisoner. In this instance, the prisoner was particularly violent so the officers involved had to apply special control and restraint techniques. This incident was filmed by CCTV and attended by a number of witnesses, one of whom claimed that she had seen Mr Lown strike the prisoner three times. As a result of that complaint, Mr Lown was suspended and an investigation was carried out. The disciplinary hearing reviewed evidence from select witnesses, the CCTV footage and a report from an expert in the use of force in prisons. Notably, one of the eye witnesses, a nurse whose testimony was favourable to the Claimant, was not called to give evidence. The CCTV evidence was favourable to the Claimant in that it showed him using measured language with the prisoner and it did not clearly show where his arm landed. On the contrary, the expert witness stated that the Claimant’s strikes were not defensive in nature. The dismissing officer chose to rely on the evidence of the expert witness in deciding that the Claimant was guilty of gross misconduct and so should be dismissed.
The applicable legal principles are contained in section 98 of the Employment Rights Act 1996 and the guidance in the associated case law. This states that the Tribunal must ask itself a series of questions as to whether the employer:
If the answer to all of the above is yes, then the Tribunal must decide if the employer’s actions fell within the range of reasonable responses that a hypothetical reasonable employer may have adopted.
In the instant case, the EAT found that the Tribunal made a number of procedural transgressions. Firstly, the judgment made it clear that the Tribunal had decided that the dismissing officer was acting in bad faith and did not accept that he had a genuine belief in the Claimant’s misconduct. In other words, the Respondent had not made good its reason for the dismissal for section 98(1) purposes. The EAT held that, even though the dismissing officer’s approach and reasoning were explored in cross-examination, the Respondent should have been given the proper opportunity to deal with this issue explicitly given that the finding of bad faith, and the rejection of the Respondent’s assertion of an honest belief, had been central to the Tribunal’s reasoning.
Secondly, the EAT found that the Tribunal had relied on its own assessment of the evidence and the weight that should be attached to it, rather than considering whether what the Respondent had done fell within the range of reasonable responses. For example, it preferred its own analysis of the favourable CCTV evidence, in particular its own interpretation of the tone and manner of the Claimant’s verbal exchange with the prisoner. Furthermore, the Tribunal held that too much reliance had been placed on the expert witness evidence by the dismissing officer, when there were eye witnesses who had not been called (such as the nurse who gave evidence favourable to the Claimant).
In assessing the evidence, the Tribunal made references to what a “reasonable employer” might or might not have done. The EAT criticised this approach for two reasons. It is not possible to avoid the problem of substitution merely by making reference to reasonableness. In doing so, the Tribunal had fundamentally misdirected itself as to the correct test. In effect, by substituting its own view for that of the employer, it set down the one correct standard of what the reasonable employer would have done, rather than asking whether what the Respondent did was within the range of reasonable responses.
Interestingly, the EAT remarked that, if the Tribunal had directed itself as to the correct test, then it may well have been entitled to hold that the fact the nurse’s eyewitness evidence had been excluded fell outside the band of reasonable responses. However, because the Tribunal had fallen into the substitution mind-set, its findings were unsafe.
On account of the number of procedural errors made by the Tribunal, the matter was remitted to a new Tribunal for a fresh hearing.
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