The recent Employment Appeal Tribunal (EAT) case of the University of Warwick v Mr Gray concerned the dismissal of a swimming pool attendant who wrongly, along with some colleagues, entered his sports centre after a student's pyjama party.
The original tribunal decided that the dismissal was unfair, and the University appealed the ruling on the basis that the tribunal had substituted its own view rather than applying the band of reasonable responses.
The case centred on consideration of the evidence, and making a distinction between evidence that was available to the employer at the time the decision to dismiss Mr Gray was made, and the evidence that was available to the tribunal.
The key case in this regard is London Ambulance Service NHS Trust v Small (2009). This was a misconduct case in which an unsuccessful employee attempted to re-run a case with new evidence at tribunal in order to justify his position.
In this case, the EAT made a distinction between the evidence which was set before the employer and the evidence which was available to the tribunal. It was firmly established that there must be a separation of fact-finding in relation to contributory fault where the decision has to be made as to whether or not misconduct actually occurred.
The University won its appeal on the basis that the dismissal decision could have gone either way, but either option would still have been within the band of reasonable responses available to the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
