Enable Care & Home Support Ltd v Pearson

Factual and Procedural Background

The matter before the Employment Tribunal involved the Plaintiff and Company A. The Plaintiff commenced employment with Company A on 17 October 1994 and held the position of Human Resources Adviser at the time of her summary dismissal by letter dated 12 May 2008. The dismissal arose in a context of acrimony between the Chief Executive of Company A and the Plaintiff's line manager, who had been absent due to sickness since September 2007 and resigned in February 2008.

Company A found four charges proven against the Plaintiff, which led to her dismissal: (1) improperly altering the holiday record of the Plaintiff's line manager and making a false entry; (2) divulging confidential information to the line manager regarding a grievance; (3) confirming the line manager's attendance at a training event while suspended, in breach of Company A's procedure; and (4) passing confidential information about the identity of a solicitor instructed by Company A to the line manager during her suspension pending investigation.

The dismissal panel considered the Plaintiff's role in HR with access to confidential information, her siding with the line manager against Company A’s interests, inconsistencies in her accounts, and a breach of trust. Although a sanction short of dismissal was considered, summary dismissal was deemed appropriate. The Plaintiff appealed internally on the basis that the sanction was too harsh, but the appeal was dismissed.

The Employment Tribunal initially upheld the Plaintiff's claims of both unfair dismissal and wrongful dismissal, finding that the Plaintiff had contributed 50% to her dismissal, a finding not appealed by either party. Company A appealed the Employment Tribunal’s judgment.

Legal Issues Presented

1. Whether the dismissal of the Plaintiff was fair within the meaning of section 98 of the Employment Rights Act 1996, particularly whether the dismissal fell within the range of reasonable responses available to the employer.
2. Whether the Employment Tribunal erred in law by substituting its own view of the appropriate sanction for that of Company A.
3. Whether the Plaintiff’s dismissal was wrongful at common law, specifically whether the misconduct amounted to gross misconduct justifying summary dismissal.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal impermissibly substituted its own judgment on the appropriateness of the dismissal sanction, favoring a final written warning instead of dismissal.
• The four charges should be viewed collectively, with the breach of trust by the HR professional being sufficient to justify summary dismissal.
• The essential test under section 98(4)(a) of the Employment Rights Act should govern, with subsection (b) adding little substantive difference.
• The dismissal was within the band of reasonable responses available to the employer and thus fair.
• The appeal on wrongful dismissal is a challenge on perversity grounds, which faces a high threshold and should fail.

Respondent's Arguments

• The Employment Tribunal did not substitute its own view for that of the employer but properly considered the equity and substantial merits of the case under section 98(4)(a) and (b) of the Employment Rights Act.
• The Employment Tribunal’s assessment of mitigating factors and the overall context, including a dysfunctional workplace and the Plaintiff’s role in the conflict, justified its conclusion that dismissal was unfair.
• The Employment Tribunal’s finding on wrongful dismissal was permissible and should stand.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming that the Employment Tribunal correctly applied the Burchell test and found the employer’s belief in the Plaintiff’s misconduct was genuine, based on reasonable grounds and investigation. The Tribunal also found no unfairness in the procedure adopted by Company A.

The central question was whether dismissal fell within the range of reasonable responses open to the employer under section 98(4) of the Employment Rights Act 1996. The Employment Tribunal concluded dismissal was too harsh and that a final written warning would have sufficed, effectively substituting its judgment for that of the employer.

The Employment Appeal Tribunal majority held that the Employment Tribunal erred by diluting the employer’s reason for dismissal and substituting its own view on the seriousness of the charges and the appropriate sanction. The correct question was whether the employer’s reason was sufficient for dismissal, not whether the Tribunal would have dismissed.

The majority concluded that dismissal was within the reasonable band of responses and allowed the appeal to overturn the unfair dismissal finding, substituting a finding of fair dismissal. They distinguished this case from others requiring further fact-finding.

Conversely, the minority considered that the Employment Tribunal’s approach properly accounted for both subsections (a) and (b) of section 98(4), assessing equity and substantial merits without impermissible substitution. They found no perversity in the Tribunal’s decision and would have dismissed the appeal on unfair dismissal.

Regarding wrongful dismissal, the court noted that this was a distinct factual inquiry into whether the Plaintiff’s conduct amounted to gross misconduct justifying summary dismissal. The Tribunal found it did not, and the court unanimously upheld this finding, dismissing the wrongful dismissal appeal.

Holding and Implications

The Employment Appeal Tribunal held by majority that the appeal against unfair dismissal succeeds and the Employment Tribunal’s finding of unfair dismissal is set aside. The appeal against wrongful dismissal fails, and that finding stands.

Holding: The Plaintiff was fairly dismissed for statutory unfair dismissal purposes, but the dismissal was wrongful at common law due to lack of gross misconduct.

Implications: The decision directly affects the parties by overturning the unfair dismissal finding but upholding wrongful dismissal. No new legal precedent was established beyond reaffirming the proper application of the Burchell test and the scope of the Employment Tribunal’s discretion under section 98(4) of the Employment Rights Act 1996.