It has long been established that the role of the employment tribunal is not to re-run the disciplinary hearing. Instead, it should decide if, on its assessment of the facts, the employer acted reasonably in deciding to dismiss.
The case of JP Morgan v Ktorza is the latest in a long line of reminders on this point from the Employment Appeal Tribunal. It also makes an interesting observation about the nature of the employer’s defence to a claim of unfair dismissal following a finding of gross misconduct. The first stage of the employer’s defence is simply to establish its reason for dismissal. Under the statutory language of the Employment Rights Act this would be “conduct”. It is not necessary at this stage to show that the conduct is “misconduct” or reprehensible, or that the employee was in some way culpable. There is certainly no need to go so far as to establish that the employee knew that their actions were against their employer's wishes. This would be adding a criminal burden of proof to employment law.
Having established the reason for the dismissal, the employment tribunal must then decide whether the employer acted reasonably in treating it as sufficient for dismissal. Of course, the more thorough the investigation and the stronger the facts relied upon by an employer, the safer its defence will be at tribunal. The employer does not however have to lobby the tribunal for a judgment to be reached on what decision it would have made had it been the employer.