Employment Tribunal Fell into Substitution Trap

In an unfair dismissal claim, the task of the Employment Tribunal (ET) is to find why and how the employer took the decision to dismiss and to review whether or not it was reasonable to take the decision for those reasons and in that way. The ET is not entitled to substitute its own views on factual matters for those of the employer. In a recent unfair dismissal case, a rehearing was ordered after the ET repeatedly did just that (P&O Ferrymasters Limited v Thorogood).

Mark Thorogood worked for P&O Ferrymasters, which carries on business in the field of transport and logistics, as a crane operator. He was employed by the company from 1 January 2007 until he was summarily dismissed on 25 March 2015 after his machine was badly damaged.

Mr Thorogood claimed that there had been a single incident in which the crane, which he said was carrying a heavy load, collided with a buffer at low speed. His line manager was there at the time and broadly corroborated his account. However, this did not seem to explain the extensive damage to the crane, which appeared to suggest that it had hit the buffer at speed. Two contractors who were working nearby were also interviewed. They reported hearing a loud bang, shortly after which two people arrived at the scene. Neither of them remembered seeing the crane carrying anything.

Following a disciplinary hearing, P&O Ferrymasters found that there had been a second, much more serious collision and that Mr Thorogood had withheld the truth about that incident. He was dismissed for gross misconduct.

The ET upheld Mr Thorogood's unfair dismissal claim. During the hearing, the judge several times expressed a strong and concluded view that there had been only one collision. In his view, the improbability of the conclusion that there was a second accident put it outside the band of reasonable conclusions that could be drawn from the evidence, nor was there sufficient information to decide whether the damage was caused by speed or by some other mechanism.

In allowing P&O Ferrymasters' appeal, the Employment Appeal Tribunal found that the ET had fallen into the trap of substituting its own views for those of the employer. As a result, it had failed to focus on whether dismissal lay within the range of responses open to a reasonable employer in the circumstances.

The case was sent back for rehearing by a different ET.

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