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Employment Law Round Up: Tribunal Was Not Entitled to Substitute Own View of the Seriousness of an Employee's Misconduct

The Court of Appeal has found that an employment tribunal erred in substituting its own decision on the fairness of a dismissal for that of the employer, which had acted within the range of reasonable responses when choosing to dismiss the claimant for gross misconduct.

The alleged misconduct, of which the tribunal found the claimant to be guilty, was listed in the employer's handbook as consisting of gross misconduct, and it was not, in the Court of Appeal's view, open to the tribunal to decide that this was a lesser form of misconduct than the other types listed. The Court also held that, once a tribunal's errors of law have been established, if there is only one sensible decision that remains open to a tribunal, the EAT is entitled to substitute that decision rather than remit the case to a differently constituted tribunal. (Tayeh v Barchester Healthcare Ltd [2013] EWCA Civ 29.)




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