A prison officer was dismissed for gross misconduct after a prisoner alleged that she had assaulted him. During the disciplinary investigation the employer viewed CCTV footage of the incident, which was not consistent with the account of the incident given by the prisoner. However, the employer did not show the prisoner the CCTV recording or obtain his comments on it. (The prison officer did have an opportunity to watch the recording.) A tribunal found that this failure rendered the investigation and the dismissal unfair.
The EAT overturned the finding of unfair dismissal. The employer had formed its own view of the incident on the basis of the CCTV recording, not the account given by the prisoner. This meant that the decision to dismiss was not based on the prisoner's account but the recording itself. The failure to show the recording to the prisoner therefore could not undermine the fairness of the investigation. In addition, the tribunal had formed its own view of what the CCTV recording showed, instead of asking what a reasonable employer could have concluded from the recording. The case was remitted to the tribunal.
