Fuller v London Borough of Brent

Factual and Procedural Background

The Plaintiff, formerly employed as a bursar by Company A, was dismissed by Company A for gross misconduct relating to her intervention during an incident involving the restraint of a pupil at a specialized school. The Plaintiff challenged her dismissal as unfair before the Employment Tribunal (ET), which found in her favor, concluding that the dismissal was unfair for a conduct reason. The ET acknowledged that Company A had a genuine belief in serious misconduct but expressed concerns about aspects of the investigation process and ultimately concluded that no reasonable employer would have dismissed the Plaintiff for a one-off incident.

Company A appealed to the Employment Appeal Tribunal (EAT), which allowed the appeal on the basis that the ET had erred in law by substituting its own judgment for that of the employer and failing to apply the objective test of whether the dismissal was within the range of reasonable responses. The EAT set aside the ET’s decision and dismissed the Plaintiff’s claim without remitting the matter for reconsideration.

The Plaintiff then appealed to the higher court, which granted permission to appeal. The appeal concerns whether the ET correctly applied section 98(4) of the Employment Rights Act 1996 and whether the EAT erred in dismissing the claim outright rather than remitting the matter for rehearing.

Legal Issues Presented

1. Whether the Employment Tribunal correctly applied the objective test under section 98(4) of the Employment Rights Act 1996 in assessing the fairness of the dismissal.
2. Whether the Employment Tribunal erred by substituting its own subjective judgment for that of the employer in determining the reasonableness of the dismissal.
3. Whether the Employment Appeal Tribunal erred in law by dismissing the Plaintiff’s claim outright rather than remitting the case for reconsideration on the correct legal basis.
4. Whether the Employment Tribunal properly assessed the reasonableness of the employer’s investigation into the alleged misconduct.

Arguments of the Parties

Appellant's Arguments (Company A)

• The ET misapplied section 98(4) by failing to apply an objective standard and instead substituted its own subjective view for that of the employer.
• The ET failed to apply the "range or band of reasonable responses" test, a well-established objective standard in unfair dismissal cases.
• The ET incorrectly criticized the investigation process, applying a subjective approach rather than assessing whether the investigation was reasonable in all the circumstances.
• The EAT correctly identified these errors and was entitled to set aside the ET’s decision.

Appellee's Arguments (Plaintiff)

• The ET did apply the correct objective test and reasonably concluded that the dismissal was unfair as it was outside the range of reasonable responses.
• The ET’s concerns about the investigation did not amount to an error of law and were part of its overall assessment of fairness.
• The EAT erred in dismissing the claim outright without remitting the case for reconsideration on the correct legal basis.
• The appellate bodies must be cautious not to substitute their own views for those of the ET on matters of fact and reasonableness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
British Home Stores Ltd v. Burchell [1978] IRLR 379	Establishes the test for fairness in dismissal involving genuine belief, reasonable investigation, and reasonable response.	Referenced as the foundational legal standard for assessing fairness of dismissal and the need for objective evaluation of employer's decision.
British Leyland v. Smith [1981] IRLR 91	Related to the application of the reasonable employer test in dismissal cases.	Cited among authorities supporting the objective standard under section 98(4).
Iceland Frozen Foods Ltd v. Jones [1983] ICR 17	Clarifies the "range or band of reasonable responses" test.	Used to illustrate the objective test for dismissal fairness.
Post Office v. Foley [2001] 1 All ER 550	Addresses procedural and substantive fairness in dismissal.	Supports the legal framework for assessing dismissal fairness.
J Sainsbury v. Hitt [2003] ICR 111	Concerns the application of the reasonable response test in dismissal cases.	Referenced to reinforce the objective standard required.
Airbus UK Ltd v. Webb [2008] ICR 561	Discusses the importance of the employer’s genuine belief and reasonable investigation.	Supports the principle that tribunals must not substitute their view for that of the employer.
London Ambulance Service NHS Trust v. Small [2009] IRLR 563	Emphasizes the objective assessment of dismissal fairness.	Used to illustrate the correct application of the range of reasonable responses test.
Orr v Milton Keynes Council [2011] EWCA Civ 62	Distinguishes between facts known to the employer and findings of the tribunal.	Clarified that the employer’s reasonable belief is the relevant consideration, not the tribunal’s own factual findings.

Court's Reasoning and Analysis

The court began by affirming the legal framework under section 98(4) of the Employment Rights Act 1996, which requires an objective assessment of whether the employer acted reasonably in dismissing an employee for misconduct. The court acknowledged the extensive case law establishing the "range or band of reasonable responses" test as the standard for fairness.

The Employment Tribunal was found to have correctly identified the relevant legal test and posed the appropriate question regarding the reasonableness of the dismissal. However, the ET’s reasoning included subjective language such as "we felt," which suggested it might have substituted its own judgment for that of the employer. Despite this, the court concluded that when the ET’s decision is read fairly and in its entirety, it applied the objective test and concluded that the dismissal was unfair because it fell outside the range of reasonable responses.

The court noted that the ET found the employer had a genuine belief in misconduct and conducted a reasonable investigation, although it had some reservations about the neutrality of the investigator. Nevertheless, these reservations did not vitiate the overall reasonableness of the investigation.

The court found that the EAT erred in dismissing the claim outright rather than remitting the matter for rehearing. The EAT’s dismissal was based on the ET’s alleged error of law, but the court held that the ET did not err in law and its decision was not perverse. The court emphasized the distinction between questions of law and findings of fact, noting that appellate bodies must not substitute their own views for those of the ET unless there is an error of law or perversity.

Further, the court highlighted a key error made by the ET in assessing the reasonableness of the dismissal by reference to its own findings about the earlier warning rather than the employer’s belief at the time. This was a significant issue because the employer’s decision must be judged based on the facts as the employer understood them. Despite this, the court held that the ET’s ultimate conclusion on fairness was based on the correct legal test.

In sum, the court reasoned that the ET’s decision to find unfair dismissal was supportable on the proper application of the objective test, and the EAT’s order setting aside the ET’s decision and dismissing the claim was incorrect.

Holding and Implications

The appeal is allowed. The court holds that the Employment Tribunal did not err in law in finding that the Plaintiff was unfairly dismissed. The Employment Appeal Tribunal was not entitled to set aside the ET’s decision or to dismiss the Plaintiff’s claim outright.

The case is remitted to a differently constituted Employment Tribunal for reconsideration limited to the question of whether the dismissal was fair on the basis of the facts as found by the disciplinary panel. The court’s decision restores the Plaintiff’s ability to pursue her claim and clarifies the proper approach appellate bodies must take in reviewing ET decisions on unfair dismissal.

No new precedent is established beyond reaffirming the application of the objective test under section 98(4) and the limits on appellate intervention.