In January, we reported on the decision of the Employment Appeal Tribunal (EAT) in the case of Stuart v London City Airport  – you can find that article here. You may recall that in that case the employer allegedly failed to interview potential witnesses or view CCTV recordings of the alleged dismissal.
Somewhat surprisingly, the finding from the EAT that the dismissal was unfair has been overturned by the Court of Appeal, which reinstated the finding from the original Employment Tribunal that the dismissal was fair. We look at the reasons why. The Court of Appeal’s judgment can be found here. There were a number of fact specific reasons for upholding the original Tribunal decision, for example that Mr Stuart had apparently not raised the issues about the company not speaking to witnesses or viewing the CCTV at the disciplinary or appeal hearings, but only when it came to the Employment Tribunal. His main argument at the time had been that he had never left the duty free department, which he subsequently admitted was not true. The Court of Appeal stated that where the employer had inspected the site where the alleged theft happened and concluded that the employee’s main argument was dishonest, it was reasonable for them not to consider CCTV footage in relation to the alleged concealment of the goods whilst the employee was in the shop. The employer formed a reasonable view themselves as to his credibility and so they did not have to go any further than that.
However, the most important reason for the Court of Appeal overturning the EAT’s decision was one of law. The EAT can only overturn a Tribunal’s decision when there is an error of law (usually where the Tribunal asks itself the wrong questions) or where the Tribunal’s decision was perverse. In this case the EAT overturned the Tribunal’s decision on the grounds that it was perverse. The Tribunal is the arbiter of fact, and it is only when the conclusion drawn from those facts is one that no reasonable Tribunal could reach that a decision will be held to be perverse.
The Court of Appeal emphasised that both the EAT and the Court of Appeal “should be slow to overturn the decision of a Tribunal which has asked the right questions and come to a considered conclusion about them.”
Employers should not take this case as being authority for the proposition that it is not necessary to carry out a proper investigation into alleged misconduct. The law requires there to be a reasonable investigation into alleged misconduct, and what that will amount to will of course very much depend on the specific facts of the case. What this case does illustrate is how difficult it can be to overturn a decision of a Tribunal where there has been no error of law.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).