Secretary of State for Justice v Mr G Lown

The EAT held that if allegations of bad faith are central to the ET’s reasoning, they, the ET, have to put those allegations to the employer’s dismissing officer in an unfair dismissal case.


The claimant was an employee of the respondent as a prison officer from November 2005 until his dismissal for gross misconduct in August 2013. The dismissal arose from an allegation that he had punched a prisoner in the back during a planned intervention which took place in January 2013. The claimant brought a claim for unfair and wrongful dismissal.

The ET upheld the claimant’s claims of unfair and wrongful dismissal. The ET did not make a specific finding as to the reason for the dismissal; however its reasoning suggested that it had concluded that the employer had acted in bad faith and did not have a genuine belief in the claimant’s misconduct. The ET further held that no reduction should be made in respect of the claimant’s conduct.


The employer appealed against the finding that the claimant had been unfairly dismissed and against the lack of reduction in the award for contributory fault.

The EAT noted that the ET’s findings suggested that it had considered that the employer  had acted in bad faith and was determined to find that the claimant had been guilty of gross misconduct (regardless of the evidence in the claimant’s favour). The suggestion of bad faith had not been put to the employer’s witnesses and that procedural error (given the centrality of the point to the ET’s findings) rendered the decision unsafe.

Furthermore, the ET’s conclusions demonstrated that it had fallen into the substitution mind- set. Rather than assessing the employer’s conduct and decision-making against the range of reasonable responses, the ET applied the test of what it considered the reasonable employer would have done or decided. The ET also should have considered a Polkey reduction when there was a “finding of substantive unfair dismissal”.

Points to note

This case highlights the importance of the ET’s approach in finding whether or not the employer has established the reason for the dismissal. This requires a finding as to the collection of facts subjectively operating on the employer’s mind at the relevant time, and the ET should then go on to determine whether the dismissal was fair or unfair. At this stage the test to be applied is that of the range of reasonable responses of the employer in the relevant circumstances.  It is important that the ET does not set down one standard as being the reasonable employer’s response, but rather looks at the range of reasonableness responses.