Thread by @JasonBraier

1/ Brown v Veolia - EAT held ET perverse in finding a conduct dismissal fair given its recognition of the extensive ineptitude in the process. The ET also erred in discounting those flaws when considering an uplift to a wrongful dismissal award. #ukemplaw bailii.org/uk/cases/UKEAT…

2/ B, a business development officer, was dismissed for misconduct against a subordinate via a disciplinary process the ET described as 'a catalogue of ineptitude and misjudgement', in spite of which the ET found the dismissal just about fair!

3/ The ET criticised pretty much every aspect of the process, including the process chosen, the suspension, the investigation meeting invite, failing to give B statements, the manner of questioning, the lack of follow-up, & refusing an adjournment for B to contact witnesses.

4/ Whilst finding the dismissal fair, the ET found it wrongful & that she hadn't met the employer's definition of bullying. The ET finally moved on to consider a s.207A uplift on the wrongful dismissal award. It settled on 5%.

5/ In reaching that figure, the ET discounted the breaches relevant to the finding on the unfair dismissal claim, considering it not just & equitable to make an uplift in respect of such matters. The uplift related to a breach of the ACAS code unrelated to the unfair dismissal.

6/ Whilst recognising the latitude to ETs on findings of reasonableness (so long as not through substitution), the EAT considered this to be a rare case where the ET decision couldn't stand. The EJ's characterisation of the process was wholly merited but his conclusion perverse.

7/ In line with Lock v Cardiff Railway, the ET should take account of breaches of the ACAS code when considering s.98(4) fairness.

8/ On s.207A, the EJ was wrong to consider his s.98(4) finding absolved the employer for breaches of the ACAS code. They could still properly be taken account under s.207A. The EJ had also been wrong to consider whether this would be a windfall for B - that was irrelevant.