The EAT case of University of Warwick v Mr Gray concerned the dismissal of a swimming pool attendant who wrongly entered his sports centre with colleagues after a student’s pyjama party.  The ET determined the dismissal to be unfair and the University appealed on the basis that the Tribunal had substituted its own view rather than apply the band of reasonable responses.  The case revolved around consideration of the evidence and distinguishing between evidence that was available to the employer at the time of the decision as opposed to evidence available to the tribunal.

The key case is London Ambulance Service NHS Trust v Small [2009].  This was a misconduct case where an unsuccessful employee sought to re-run a case with new evidence at tribunal in order to vindicate his position.  The EAT distinguished between the material which should be before the employer and not the material which would convince a Tribunal as to whether it was reasonable to dismiss.  This case made it clear there must be separation of fact-finding in relation to contributory fault where the decision has to be made as to whether conduct actually occured.

The University won at appeal on the basis that the decision as to dismiss or not to dismiss could have gone either way but it could not be said to be outside the band of reasonable responses.

Undoubtedly the best line of the judgment is ‘the sports centre … is known to a substantial body of the judiciary, for it is at the University of Warwick where we are regularly taken to study and exchange views. From time to time her Majesty’s judges are to be seen  in the pool, taking exercise away from those intellectual rigours.’

The mind boggles!