Veitch Penny LLP - Exeter | Crediton, Devon

Case

Sainsbury's Supermarkets Ltd v Hitt - Court of Appeal (Civil Division) (18/10/02)

Issues

(1) Unfair Dismissal
(2) Gross misconduct
(3) Reasonable responses

Facts

The Applicant, employed as a baker, was accused of stealing a box of razor blades. A search was undertaken and the razor blades were found in the Applicant's locker. He denied any knowledge of them, stating that someone else could have put them there; other employee's had keys that fitted his locker. It transpired that the bakery manager was the only person whose key fitted the Applicant's locker.

Once investigations had been undertaken, the Applicant was dismissed on the basis of gross misconduct. The Applicant appealed their decision, but this was dismissed following further investigations.

The Applicant then made a claim for unfair dismissal. The Employment Tribunal held that the Respondent's investigation had been flawed and the Applicant had been unfairly dismissed. In reaching their decision, the Tribunal had applied the Employment Appeal Tribunal's interpretation of s. 98 of the Employment Rights Act 1996 in the case of Midland Bank plc -v- Madden (2000) IRLR 288.

The Respondent appealed the decision to the Employment Appeal Tribunal, on the basis the Court of Appeal had reversed the decision adopted by the Tribunal. The Appeal Tribunal dismissed the appeal, stating that the correct decision had been reached, albeit by the wrong route.

The Respondent then appealed the decision to the Court of Appeal.

Decision

The appeal was allowed - the Employment Tribunal had indeed applied an incorrect test.

When the Court of Appeal had reversed the decision in Madden, it had emphasised that it was necessary to apply the objective standard of the reasonable employer to all aspects of whether an employee had been fairly dismissed. However, in this case, the Tribunal had not applied that test to the question of whether the investigation itself had been reasonable. Instead it had substituted its own standard of what should be expected from a reasonable employer.

If the correct approach had been taken, the only conclusion that a reasonable employer would reach was that there had been an investigation, which in all the circumstances had been reasonable. The investigation was not carried out to determine the Applicant's guilt, merely that there had been reasonable grounds to form the opinion that there had been gross misconduct to which a reasonable response was to dismiss. It was reasonable to presume that the Applicant's explanation was improbable.

Comments

The Court of Appeal rejected the view that the "range of reasonable responses" test only applied to the decision to dismiss itself rather than the procedure adopted. In considering whether a dismissal for misconduct is fair or unfair an Employment Tribunal must not substitute it's own view for that of the employer, but instead must consider whether the dismissal was within the "range of reasonable responses" available to the employer. In this case, the Applicant argued that his colleagues might have placed the razor blades in his locker. In such a case, where it is one person's word against another the "range of reasonable responses" test is particularly relevant. One employer may reasonably give the benefit of the doubt, whilst another, also reasonably, may feel that there was no supporting evidence to corroborate the employee's claim.