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Employment Judge Fell into Substitution Trap

Decisions about what action to take in response to workplace misconduct are a matter for employers and employment judges are not entitled to substitute their own views on factual matters for those of the primary decision-maker. In one unfair dismissal case, a re-hearing was ordered after a judge repeatedly did just that.

A crane operator was summarily dismissed after his machine was badly damaged. He claimed that there had been a single incident in which the crane collided with a buffer at low speed. However, following a disciplinary hearing, his employer found that there had been a second, much more serious, collision and that he had withheld the truth about that incident. An Employment Tribunal judge later upheld his unfair dismissal claim. During the hearing, the judge several times expressed a strong and concluded view that there had been only one collision.

In allowing the employer’s appeal, the Employment Appeal Tribunal (EAT) found that the judge had fallen into the trap of substituting his own views for those of the employer. As a result, he had failed to focus on whether dismissal lay within the range of responses open to a reasonable employer. In those circumstances, the case was sent back for rehearing by a different employment judge.