There has been much local comment and some criticism of the Jersey Employment Tribunal since 8 January this year, when the Royal Court handed down a judgment which overturned a decision on unfair dismissal made by the Tribunal in July 2013.
The case is of particular interest to any employer who has gone before a Tribunal and has found their decision to dismiss was unfair and/or wrong.
The employer was Voisins Department Store Limited, who investigated the report of theft, followed its disciplinary process and found the employee (Mr S) guilty of gross misconduct. He was summarily dismissed and not paid in lieu of notice. When Mr S’s internal appeal was unsuccessful, he started claims before the Tribunal for both unfair and wrongful dismissal, and was successful in both.
Voisins appealed both decisions. Appeals to the Court are limited to a point of law.
The Court found that in relation to Mr S’s claim for unfair dismissal, the Tribunal had substituted its own view for that of Voisins during the investigation and disciplinary stages.
Substitution is regularly a ground for an appeal to the Employment Appeal Tribunal in the UK and sometimes further appeals to the Court of Appeal. Substitution can, and has, occurred in our Island’s Tribunal, but this does not mean that it is incompetent or unfit for purpose.
How does substitution arise? In an unfair dismissal case, the function of a Tribunal is to review the fairness of the employer’s decision. It must avoid re-trying the factual issues or substituting its own view about the facts. It should not focus on whether the employee is guilty or innocent, but confine itself to reviewing the reasonableness of the employer’s actions.
The Court of Appeal in England has previously commented that “it is all too easy, even for an experienced [employment tribunal], to slip into the substitution mindset”. This is particularly so in misconduct cases where the employee, intent on clearing their name and reputation, may present a Tribunal with more evidence than they did during the internal hearings.
If a dismissal is found to be unfair (having applied well known principles that have been established in previous case-law over a number of years), then the Tribunal will be obliged to make its own findings as to the conduct of the employee. However, such findings should not be allowed to seep into a Tribunal’s reasoning as to the fairness of the dismissal in the first place. This is what can happen in practice and what the Court found occurred in Mr S’s case when the Tribunal considered it.
Guidance on the issue of substitution of mindset was issued by the Court of Appeal in England last year when it considered another case of gross misconduct which had resulted in a summary dismissal, which a Tribunal had gone on to consider to be unfair. In Tayeh v Barchester Healthcare Limited, it was found that the Tribunal had erred in its approach to the evidence – instead of starting with BHL’s reasoning in relation to certain documentation (regarding the falsification of company records), and then applying the range of responses test, it had substituted its own conclusion as to whether dismissal for the alleged conduct fell within the range of responses of the reasonable employer.
We may still not have seen, or heard, the end of the dispute between Mr S and Voisins!
As it is possible for an employer’s decision to dismiss to be found to have been fair but nonetheless wrongful, the Court did not go on to consider the Tribunal’s decision in respect of Mr S’s claim for wrongful dismissal. Instead, it suggested that the Tribunal consider this again in light of its decision in the unfair dismissal claim. If the Tribunal was to again award Mr S a sum equivalent to his notice pay, I would be surprised if Voisins do not appeal further and if it does, the Court will have to adjudicate on Mr S’s wrongful dismissal claim after all.
If you have represented yourself, or your business, in an unfair dismissal case before the Tribunal, and are concerned that the decision may have involved a substitution of its own findings, then you could consider seeking permission to appeal from the Tribunal. Even if this is rejected, you are not prevented from subsequently applying for leave directly from the Court.
Legal advice could tell you whether there is possible merit in proceeding with an appeal to the Court. Depending on the value of the sums awarded for unfair and/or wrongful dismissal, it may, or may not, be economic to do so.