The Employment Rights Act says that employees have the right not to be unfairly dismissed, and whether or not an employer’s decision to dismiss was unfair is to be decided by the tribunal ‘in accordance with equity and the substantial merits of the case.’
You might think that that meant an employment tribunal had to decide whether they thought your employer had acted unfairly in dismissing you. You’d be wrong: over many years, judges have decided that what Parliament was really trying to say was that where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the tribunal should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer. Any time a tribunal actually decides for itself (as the Act seems to tell it to) whether a decision was fair or unfair, it gets firmly slapped down by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of reasonable responses. This makes winning unfair dismissal cases – especially where you’ve done something wrong, but your employer has overreacted by dismissing you – pretty difficult.
Given that background, the judgment of the Court of Appeal in Robert Newbound v Thames Water Utilities provides a little bit of comfort. It doesn’t disturb the received wisdom, but it does at least emphasise that if it’s not for the ET to substitute its judgement on the merits of dismissal, it’s not, either, for the EAT to substitute its judgement for that of the ET.
Mr Newbound had (ironically) relied on his own judgement about whether it was safe to enter a sewer without breathing equipment. The employer had recently introduced new health and safety practices, under which he had signed a form indicating that he knew he was required to use breathing equipment for this particular task. He hadn’t read the form properly, of course, and didn’t realise that under the new regime he was likely to be disciplined for making his own judgement about safety. The tribunal had found his dismissal unfair. The EAT said that was ‘substituting its judgment’ for that of the employer. The Court of Appeal said there was no error of law in the ET’s approach, and restored its decision.