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Important Guidance on Substitution Appeals

Nicholas Siddall, who successfully appeared on behalf of the Appellant, addresses the guidance found in the recent EAT decision in Leeds Teaching Hospitals NHS Trust v Blake.
Success on substitution appeals is notoriously difficult to achieve. Despite the fact that (almost) as a matter of course Employment Tribunals substitute their views as to the reasonableness of a dismissal for that of the employer the EAT has been traditionally resistant to such appeals. The difficulty is that an Employment Tribunal judgment shall invariably direct itself as to the ‘band of reasonable responses’ test and state that it has applied the same. Thus success on appeals of this nature involves satisfying the EAT that the Employment Tribunal has in fact done the exact opposite of that which it claimed.
The EAT’s approach to such appeals has been addressed in a series of Court of Appeal authorities culminating in Fuller and Bowater. Further the President (Langstaff J) has also addressed the approach to such appeals in his judgments in Callow v Anthony [2012] UKEAT/0136/11 and JJ Food v Kefil [2013] IRLR 850.
However in the recent judgment in Blake the EAT (HHJ Richardson) has given helpful guidance as to the approach in a judgment by an Employment Tribunal which is likely to satisfy the EAT that an Employment Tribunal has fallen into the ‘substitution mindset’.

The Facts

The facts of Blake can be briefly summarised. The Claimant was an employee of the Trust who was the subject of a live final written warning. She had accrued substantial holiday and the Trust encouraged her to take that holiday in a defined period. A dispute then arose as to whether, as regards one period of holiday, the Claimant had permission to take the same. The Claimant nonetheless took the holiday and was eventually dismissed as a result of her failure to obey the Respondent’s instruction not to be absent from work during that period.
The Claimant contended that her dismissal on that basis was unfair and further was an act of victimisation as a result of her earlier complaints of discrimination. Both claims succeeded before the Leeds Employment Tribunal.

The EAT Judgment

The appeal succeeded as regards the findings of unfair dismissal and victimisation. The victimisation finding was overturned as a result of inadequate fact finding and the Employment Tribunal’s failure to direct itself as to the distinction between unreasonableness and victimisation.
However of greater general application was the EAT’s analysis of how the Employment Tribunal had fallen into the ‘substitution mindset’ and the indicators of the same that the EAT shall look for in a judgment.
HHJ Richardson said this:
“60.… There tend, in my experience, to be two features which may contribute to a conclusion that the Employment Tribunal has not applied the section 98(4) test.  Firstly, there may be signs which indicate that the Employment Tribunal has in effect made and proceeded from its own findings of fact when it should have started with the employer’s findings and asked whether those findings were reasonable.  Secondly, there may be signs that the Employment Tribunal’s criticisms of an employer apply an extremely high standard without recognising that there is a range of acceptable ways of investigating and deciding a disciplinary matter.  Even if these signs appear to be present, the decision must still be read in the round in order to decide whether it is really vitiated by error.”
On the facts the EAT found both errors to have occurred as repeatedly the Employment Tribunal made its own findings of fact. This was an error as HHJ Richardson observed (paragraph 66) 
“I would expect the Employment Tribunal to identify the Respondent’s reasons, discuss them, and say whether they were reasonable.  This process is absent from the Employment Tribunal’s reasons.”  
Also the Employment Tribunal had fallen into further error (paragraph 68)
“I further consider that there are instances where the Employment Tribunal has mandated an extremely high standard of investigation without recognising that there is a range of reasonable responses for an employer.”


It is therefore suggested that Blake is a useful authority for Respondents seeking to appeal decisions on the grounds of substitution as it indicates in terms what the EAT shall seek to identify before it shall allow an appeal on this basis.
Nicholas Siddall was instructed by Linda Glover of Hill Dickinson Manchester. A link to the judgment is available here.
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