Employment – Unfair Dismissal – Reasons Justifying Dismissal – Material from Internal Appeal Process

Employment – Unfair Dismissal – Reasons Justifying Dismissal – Material from Internal Appeal Process

In the case of the Colebourn v Arriva North West & Wales (2005), the Employment Appeals Tribunal (“EAT”) held that an employer has the right to consider all information that arose during an internal appeal process when deciding whether or not to dismiss an employee.

Mrs Colebourn was a supervisor for the defendant company. On 26 September 2004, Mrs Colebourn boarded the company’s bus whilst off duty. During the journey, she became ill and vomitted. She then fell from her seat and was injured. The company wrote to Mrs Colebourn by way of an informal warning and indicated that her behaviour was inappropriate. Mrs Colebourn responded that her behaviour had not been inappropriate – she had not fallen due to intoxication but because the bus braked too hard. She also indicated that she would make a claim for personal injuries against the company.

The company investigated these allegations and learned from a number of witnesses that the bus driver had not braked in the manner alleged. The company therefore took the view that Mrs Colebourn was attempting fraud by making a false claim against the company.

On 1 November 2004, a disciplinary hearing was conducted and Mrs Colebourn was dismissed for gross misconduct. The dismissal letter did not identify the reason for dismissal to be fraud but the notice of the hearing indicated the company was alleging attempted fraud.

Mrs Colebourn appealed against this dismissal. The appeal was considered by Mr Rimmer. He obtained further witness statements and upheld the dismissal. He did not mention that her dismissal was for reasons of fraud, but it was clear that this was his reason for dismissal. She brought an action before the Employment Tribunal for unfair dismissal.

The Employment Tribunal held that the dismissal was unfair on the grounds that the company did not satisfy itself that Mrs Colebourn’s conduct was dishonest. She had in fact honestly believed that she fell due to the sharp braking of the bus.

The company appealed to the Employment Appeals Tribunal on the grounds that the Employment Tribunal failed to consider all the evidence. Furthermore, the Employment Tribunal had focused on the first hearing and did not consider the additional witness statements before Mr Rimmer which led him to conclude that the claim was fraudulent.

The EAT held that:

â–ª     an Employment Tribunal must have regard to material that emerges during the course of an internal appeal process;

â–ª     Mr Rimmer was fully entitled to rely upon additional information to reach his conclusion that there had been fraud;

â–ª     the Employment Tribunal was wrong to conclude that additional material which emerges during the course of an appeal hearing can only be taken into account where there is a complete hearing; and

â–ª     Mr Rimmer had indeed addressed the question of whether Mrs Colebourn was dishonest.

The case was remitted to a different Employment Tribunal to consider the claim afresh.  If you require employment advice contact us at [email protected] or Visit http://www.rtcoopers.com/practice_employment.php or

http://www.employmentlawyersinlondon.com/costs.html.

© RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.