Judgment approved by the court
Vaultex UK Ltd v Bialas
responses. We note also that, in its self-direction as to the law, the tribunal referred to an authority to the
effect that the Burchell requirement for a reasonable investigation does not mean that an employer is
necessarily always bound to pursue every line of enquiry that the employee asks it to take up.
42.
It appears to us, therefore, that, indeed properly taking that approach, the tribunal’s ultimate
conclusion was that the respondent’s investigation was reasonably sufficient and the dismissal was not
unfair in that regard. It was ultimately found to be unfair solely by reference to the matter of sanction.
The tribunal’s decision cannot, therefore, be defended on the basis that the dismissal was found by it, in
any event, to be unfair because of an inadequate investigation.
43.
The claimant in discussion this morning did accept that reading of the decision as correct, but
maintained that the tribunal ought to have found that the dismissal was procedurally unfair. Ms Clarke
pointed out that there was no cross-appeal to that effect, but in any event we do not think that the
tribunal erred by failing to find that there was procedural unfairness in this regard. Issues of this type
must also be considered taking a band of reasonable responses approach. The respondent, it appears
from the tribunal’s decision, understood and accepted that the claimant had found the post on a jokes
website, and that it was his case that there was nothing to alert him to the fact that it might be unsuitable
or offensive, in particular because he said he found it in the clean section. The tribunal was entitled,
despite apparently having some misgivings, ultimately to take the view that it was not unfair for the
respondent to have failed to independently verify this particular element of the claimant’s case.
44.
As we have discussed, the fact that the tribunal gave itself a correct self-direction as to the band
of reasonable responses approach, and to beware of the substitution error, and asserted that it had taken
that approach in its conclusions, does not render its decision immune from challenge. We have to decide
whether, on a fair reading of the decision as a whole, it did, nevertheless, fall into error in that way
and/or reached a decision that was perverse.
© EAT 2024
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[2024] EAT 19