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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Argos Ltd v. Reis [2010] UKEAT 0285_10_2911 (29 November 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0285_10_2911.html Cite as: [2010] UKEAT 285_10_2911, [2010] UKEAT 0285_10_2911 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR J MALLENDER
MS G MILLS CBE
![]() ![]() ![]() | APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MISS S MALIK (of Counsel) Instructed by: Messrs DLA Piper UK LLP ![]() ![]() ![]() ![]() Birmingham B2 4DL |
For the Respondent | MS E EFFIOM (Representative) Free Representation Unit 289-293 High Holborn London WC1V 7HZ |
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
The tribunal did not err when it held that the employer unfairly dismissed the Claimant, since its investigation was not such as would entitle a reasonable employer to believe in the Claimant's misconduct, or for it to say its dismissal of him was within the band of reasonable responses.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issues
"2.2 This was a case involving alleged misconduct by the Claimant, a stock team leader at the Redhill store ofArgos
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Ltd,
a large national chain store. The essential facts were as follows.
2.3 The Claimant was employed by the Respondent as a Stock Team Leader. The Claimant's employment commenced on 9 December 2007. The Claimant had no formal or informal disciplinary warnings during his employment and had performed well. He was suspended on 12 May 2009 for alleged gross misconduct, pending an investigation by the Respondent into an allegation that he had used inappropriate and threatening language to an Area Manager, by allegedly sending an abusive email to an Area Manager called Carly (surname unclear) including the comment "fuck you". The email was sent from a computer outside the store room. Numerous people had access to the computer and could have sent the message.
2.4 The Respondent conducted an investigation into the Claimant's alleged misconduct, including a review of some documents, CCTV evidence and short interviews with relevant witnesses. At the time when the abusive email was sent to the Area Manager, there were seven members of staff working in the store at the time. CCTV footage was reviewed to locate the staff members in order to ascertain who sent the message from the computer outside the Respondent's stock room. Three members of staff on the shop floor were then eliminated from suspicion. That left the Claimant, Ali Nezam, Manny Chong Chan and Joe Dunt as the potential "suspects". The Claimant emphatically denied sending the email. He stated that he had never even used the Formbuildersystem
before, (that had been used to send) the email and had never met or spoken to Carly before. The other three also denied sending the email.
2.5 Following an investigation, the Respondent decided that there was a disciplinary case to answer for the Claimant. The Claimant attended a disciplinary hearing on 11 June 2009. The Claimant was summarily dismissed for gross misconduct following consideration of evidence at a disciplinary hearing."
An appeal against that was rejected.
"3. The Law
3.1 In considering the question of whether there was a fair dismissal in this case, we had to apply the provisions of Section 98 of the Employment Rights Act 1996, including Section 98(4) which provides that:-
3.2 "the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)
3.3 (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
3.4 (b) shall be determined in accordance with equity and the substantial merits of the case."
3.5 In a conduct dismissal case, the tribunal has to consider whether the employer:
(1) Genuinely believed the employee to be guilty of misconduct;
(2) Had reasonable grounds for believing that the employee was guilty of that misconduct; and
(3) Had carried out as much investigation as was reasonable at the time it held that belief, (British Home Stores Limitedv
Burchell [1978] IRLR 379).
3.6 In the light of the answers to those questions the tribunal then proceeds to consider overall fairness as required by s 98(4) ERA 1996.
3.7 In determining fairness, an employment tribunal will not consider whether the employee actually was guilty of the misconduct, therefore, but whether the employer believed, and had reasonable grounds for believing, that the employee was guilty of the misconduct at the time. It is not, as such, necessary for the employer to prove misconduct was committed on the balance of probabilities.
3.8 It is alsovery
well established law that we had to consider whether dismissal fell within the band of reasonable responses (available to a reasonable employer) in all the circumstances of the case. Our exercise does not permit the Employment Tribunal to substitute its own
view
of whether it would have dismissed at the time, but only whether dismissal fell within that band. For example, in London Ambulance Service NHS Trust
v
Small, the Court of Appeal reaffirmed that in unfair dismissal claims, the function of a tribunal is to review the fairness of the employer's decision, not to substitute its own
view.
3.9 We also had to follow the approach in Sainsbury's Supermarkets Limitedv
Hitt EWCA 2002 Civ 1588, ICR 2003, 115 and decide whether the investigation conducted as at dismissal was within the band of reasonable approaches to an investigation of this nature and consider it objectively, not substitute our own
view
of the investigation that perhaps should or could have been conducted."
The Facts
The findings
The Respondent's case
"4.11 Finally, it was necessary to look at the Claimant's disciplinary record. This was exemplary with no warnings, and good performance throughout. There was no evidence whatsoever of any use of bad language in the employment. To send an email of this nature would therefore be extremely out of character and again, pointed to it being unlikely that he would have done so."
Miss Malik contends that the Claimant had admitted occasionally using swear words.
The Claimant's case
The legislation
Discussion and conclusions