Who’s opinion?
by Jenny
A recent EAT case serves as a good reminder that an employment tribunal should not substitute it’s own opinion for that of the employer.
In this particular case a student nurse had made a complaint to her employer that she had over heard another employee swearing at one of the lady residents in a care home. The employee was subsequently invited to a disciplinary meeting and according to the minutes of the meeting the employee admitted using the language. The employee was then dismissed for gross misconduct.
At the ET the tribunal found that the employee had been unfairly dimissed because the investigation had not been reasonable and therefore the genuine belief that the employee had committed misconduct was not in the circumstances a reasonable belief. The decision was however divided, with the employment judge dissenting.
One of the grounds of appeal was that the majority had substituted their own view in that they had made an assessment of the evidence before the tribunal itself rather than asking whether a reasonable employer could have reached the conclusion that the employer did. The appeal was allowed with the EAT finding that the ET had substituted it’s own view for that of the employer.
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