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Appeals all round – unfair dismissal and wrongful dismissal in the EAT

It is not unusual for an Employment Tribunal decision to be appealed by the losing party: according to the latest figures, the Employment Appeal Tribunal receives over 2,000 appeals per year. In some cases, both parties are unhappy with the ET’s decision and appeal it. This occurred in the recent EAT case of Camden and Islington NHS Foundation Trust v Boafo.

Camden and Islington NHS Foundation Trust employed Ms Boafo as a nursing assistant. The Trust summarily dismissed her for gross misconduct, on grounds that she had been caught sleeping on duty. Ms Boafo raised claims of unfair dismissal and also wrongful dismissal (in respect of her notice pay).

The ET dismissed Ms Boafo’s unfair dismissal claim but upheld her wrongful dismissal claim. It noted that the Trust had carried out a reasonable investigation and had reached a tenable conclusion that she was guilty of gross misconduct, and concluded that she had been fairly dismissed.

The ET concluded, however, that given Ms Boafo’s 28 years of unblemished service, summary dismissal was a breach of her contract of employment and she was entitled to 12 weeks’ notice pay. The Trust appealed the wrongful dismissal finding and Ms Boafo cross-appealed the unfair dismissal finding.

Ms Boafo argued that the ET did not consider whether summary dismissal was within the band of reasonable responses. The EAT reviewed the judgment, and noted that there was no reference to the ET addressing the question of whether dismissal fell within the band of reasonable responses. The Trust responded that since sleeping on duty was such serious misconduct, dismissal was the only reasonable response open to it. The EAT felt that this was something the ET had to decide, and so upheld the Claimant’s appeal and remitted the matter back to the ET.

In relation to wrongful dismissal, the Trust argued that there was ambiguity in the ET’s judgment as to whether it was accepted that the Claimant committed gross misconduct by sleeping on duty. Again, the EAT felt it was necessary to remit the matter back. Although the legal issues in this case are reasonably standard, it is an interesting example of the appeals procedure, particularly as both parties had appeals upheld.

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