When considering claims of unfair dismissal, tribunals have to be careful not to substitute their own view of what happened instead of the employer's. As the tribunal in the case of Leicester City Council v Chapman had fallen into this trap, the Employment Appeal Tribunal (EAT) allowed the appeal. It remitted it to the tribunal for reconsideration.
Basic facts
Mr Chapman, a leisure centre attendant, was suspended from work after a colleague reported that he had sexually and physically assaulted her by grabbing her head and shoving it towards his groin. She also complained that he had verbally abused her by saying that her husband “don’t want you”. Mr Chapman was suspended while the council investigated, although he was not told at that point that he had been accused of sexual harassment.
When asked about the incident, Mr Chapman initially said he could not remember it, but when shown CCTV footage, he described it as “banter”. The disciplinary panel was concerned that he had not understood how his behaviour had affected a colleague and had only apologised when the footage was shown to him. As the council had lost trust and confidence in him by this stage, it decided that he should be summarily dismissed, a decision that was upheld on appeal.
Mr Chapman lodged claims of unfair and wrongful dismissal.
Tribunal decision
The tribunal held that the investigation carried out by the council fell outside the range of reasonable responses as it was “not the even-handed and fair process it should have been”. Firstly, there was a delay of almost two months before Mr Chapman was shown the footage; secondly, it had no sound, so it was impossible to know if he had verbally abused his colleague or not; and thirdly, although “there was a clear movement of [his colleague’s] head downwards”, it was “nowhere near the groin region”.
In addition, the person hearing the appeal took only an hour to come to his conclusion, although the hearing itself lasted five and a half hours. This time-frame, said the tribunal, suggested that the decision-maker had not given the matter his “genuine and careful consideration”.
As for the wrongful dismissal claim, the tribunal held that the council had failed to establish that the misconduct actually occurred as the only evidence it had relied on was the CCTV footage which had no audio.
The council appealed.
EAT decision
Allowing the appeal, the EAT held that the tribunal had failed to properly engage with the basis on which the decision-maker had come to his decision. Instead, it had substituted its own view for his. That meant that its conclusion with regard to the unfair dismissal claim was unsafe.
As for the wrongful dismissal claim, the EAT held that the question for the tribunal was not whether the summary dismissal fell outside the band of reasonable responses, but whether the council had established that Mr Chapman had committed a repudiatory breach of contract.
As part of its finding that the council had failed to discharge this burden, the tribunal explained that this had been because it had relied solely on silent CCTV evidence.
However, the EAT held that was incorrect as the council had also relied on statements obtained from a number of witnesses as part of the internal investigation and disciplinary process. It had also adduced indirect evidence in the form of the investigation report and disciplinary hearing notes. Although the tribunal had been free to reject that evidence, it was an error of law to disregard the material.
The EAT remitted the claim to the tribunal for reconsideration.