Procedural error rendered bad faith finding unsafe


Re: Secretary of State for Justice v Lown UKEAT/0082/15/BA

The EAT allowed an appeal by the appellant against a finding of the employment tribunal that the respondent, a prisoner officer, had been unfairly dismissed. The employment tribunal had been of the opinion that the appellant had acted in bad faith and had set out to find the respondent guilty of gross misconduct after an investigation into an incident with a prisoner, regardless of the evidence. However, this bad faith suggestion had not been put to the appellant’s witnesses during the tribunal proceedings. Given the centrality of this point to the findings, this was a procedural error that rendered the decision unsafe. The employment tribunal had substituted its own decision for that of the employer, rather than considering the range of reasonable responses open to employers.

The EAT also considered the question that had arisen about contributory conduct and Polkey reductions and how this ought to have affected the remedy granted, though it acknowledged that this was unnecessary given its initial conclusion.

Claire Darwin was involved in this case.