Glasgow health board wins appeal against decision it unfairly dismissed supervisor who threatened colleague

About this case:

• Citation:
  [2023] EAT 122
• Judgment:
  External link
• Court:
  UK Employment Appeal Tribunal
• Judge:
  Lord Fairley

Stephen Mullen was awarded over £9,000 by the Employment Tribunal after it found his employer had a genuinely held belief that he had exhibited aggressive and threatening behaviour towards a colleague. It was argued that on the facts the only conclusion open to the ET was that his dismissal was within the range of reasonable responses open to the employer.

The appeal was heard by Lord Fairley, with David James appearing for the appellant. No appearance was made by the respondent.

Question of fairness

Between November 2001 and October 2021, the respondent worked as a supervisor in the Endoscopy Decontamination Unit of Glasgow Royal Infirmary. Prior to the incident which led to his dismissal, he had been subject to disciplinary proceedings after behaving in an aggressive way towards his line manager. A supported improvement action plan was drawn up for him following that earlier incident.

On 11 March 2021, one of the appellant’s employees who was then supervised by Mr Mullen made a complaint that he had shouted at him and threatened him within the Endoscopy Decontamination Unit washroom. A decision was taken to formally investigate the allegation, resulting in a disciplinary meeting at which it was concluded that his conduct amounted to gross misconduct. He was accordingly dismissed with effect from 28 October 2021.

The ET found that there was a genuinely held belief by the appellant that Mr Mullen was guilty of the misconduct alleged. However, it concluded that the decision to dismiss him did not fall within the band of reasonable responses, having regard to what it considered procedural deficiencies such as a delay in telling the respondent about the formal investigation.

For the appellant it was submitted that the Employment Tribunal had conflated the issue of the reason for the dismissal with the question of its fairness. Secondly, it had erred in law in concluding that, at the stage of considering the appropriate sanction for an established act of misconduct, it was not open to the employer to take account of previous similar conduct by the employee. Thirdly, it submitted that the Tribunal had substituted its view for that of the employer in relation to what amounted to a fair process.

Inconsistent with findings

In his decision, Lord Fairley began: “The first and fourth grounds of appeal relate to essentially the same issue, and are each well founded. Having made clear findings in fact about the reason for the dismissal and the genuineness of the employer’s belief in the existence of that reason it was not then open to the Tribunal to base its conclusion about fairness [per section 98(4) of the Employment Rights Act 1996] on a factual hypothesis that the ‘real reason’ for the dismissal was something different.”

He continued: “The essence of the fourth ground of appeal is that the conclusions reached by the Tribunal were based on a premise that the appellant had a different (or ‘real’) reason for the dismissal. In my view, that submission is plainly correct. Having unequivocally established the facts as to the principal reason for the dismissal, and concluded that the employer’s belief in the existence of that reason was genuinely held, it was inconsistent with those findings for the Tribunal to base its decision on fairness upon a different factual hypothesis as to the reason for the dismissal.”

On the other grounds of appeal, Lord Fairley said: “The appellant was perfectly entitled, at the stage of considering sanction, to consider the previous analogous behaviour. That was so even though the panel’s conclusion was that the conduct on 11 March 2021 amounted to gross misconduct.”

He concluded: “The question for the Tribunal in considering section 98(4) is not whether the employer acted reasonably in general, but whether it did so in treating the established reason as sufficient reason to dismiss. Once the issue of ‘real reason’ is removed from the picture, the deficiencies in process identified by the Tribunal had no bearing at all on the issue of whether the reason for the dismissal established by the Tribunal amounted to sufficient reason to dismiss.”

The ET’s finding of unfair dismissal was therefore set aside, and substituted with a judgment that the dismissal of the respondent was fair.