Secretary of State for Justice v Pinkerton – Employment Tribunal falls into “substitution trap” when deciding unfair dismissal case

In the case of Secretary of State for Justice v Pinkerton UKEAT/0096/17, the Employment Appeal Tribunal (EAT) dismissed an Employment Tribunal’s (ET’s) ruling that an employee had been unfairly (summarily) dismissed from her position as a prison guard officer for assaulting a prisoner, because it based its conclusion on what it had taken from the CCTV recording of the assault, rather than asking what the Respondent could reasonably have concluded. In essence, the ET acted like the employer and substituted its own opinion contrary to the guidance laid down in the case of British Home Stores Ltd v Burchell [1980] ICR 303.


The Claimant, an experienced prison officer, used physical force towards a prisoner, Prisoner A, which was captured on CCTV. Prisoner A gave an account of the incident that was contradicted by CCTV footage (which Prisoner A had never seen). After a disciplinary hearing, where the CCTV footage was viewed, it was concluded that the Claimant had assaulted the prisoner and should be summarily dismissed. The Claimant claimed this was unfair. The ET agreed, finding that the failure to show the prisoner the CCTV evidence rendered the investigation unfair. In addition, the ET considered on having viewed the footage, that the assault did not amount to gross misconduct. The Respondent appealed to the EAT.
The EAT held that the CCTV recording provided reasonable grounds for the decision to dismiss, notwithstanding that it had not been put to the prisoner. It was, moreover, perverse that the ET had interpreted the footage itself. By assessing whether or not the Respondent’s finding that the Claimant had not acted in self-defence was correct, the ET had unwittingly fallen into the substitution trap, basing its conclusion on what it had itself taken from the CCTV recordings rather than asking, whether the Respondent acted within the range of reasonable responses.
The facts in Secretary of State for Justice v Pinkerton

The Claimant was an experienced Band 3 Prison Officer at HM Prison Durham and, as such, was subject to the Respondent’s Conduct and Discipline Policy which provided that staff were expected to meet high standards of professional and personal conduct and, in their relationships with prisoners, not to provoke, use unnecessary or unlawful force, not assault a prisoner or use offensive language to a prisoner. The use of unnecessary force was given as a specific example of gross misconduct.

On 20 July 2015, whilst on duty on B Wing, the Claimant was involved in an incident with Prisoner A, during which the Claimant used physical force towards Prisoner A. The Claimant did not complete a record of this incident; instead she reported it to her line manager who advised against the completion of any paperwork. On the following day, however, Prisoner A lodged a complaint relating to the incident.

Prisoner A’s solicitors wrote to the Prison Governor advising they had been informed of this incident and requesting the retention of any CCTV recording. The Respondent embarked upon an investigation into Prisoner A’s complaint. The investigating officer obtained and reviewed the relevant CCTV recording. From the recording, the investigating report concluded that the Claimant had used unnecessary and disproportionate physical force against Prisoner. The report recommended a disciplinary hearing which the Claimant attended (but Prisoner A did not), on 3 and 4 November 2015. It was verified that Prisoner A never saw the CCTV recording and that the accounts of events of Claimant and Prisoner, conflicted.

The Claimant was notified by the Governing Governor of the prison, Mr Timothy Allen, who was conducting the disciplinary hearing, that she faced the following charges, which could constitute gross misconduct if found proven: “That on 20 July 2015 at around 19:00 hours on B2 landing you assaulted/used unnecessary force on Prisoner A and that you were unprofessional in using abusive and disrespectful language towards Prisoner A”. Mr Allen watched the CCTV recording, listened to the Claimant mitigation pleas but still concluded that she should be summarily dismissed. The Claimant appealed his decision internally but this was dismissed and then she proceeded to lodge a complaint at the ET.

The ET agreed with the Claimant that she had been unfairly dismissed. The ET accepted that the reason for the Claimant’s dismissal had related to her conduct but that the decision to dismiss for that reason had not been fair. Specifically, the ET stated that any reasonable employer faced with the conflicting accounts of Prisoner A and the Claimant would have shown the recording to Prisoner A and obtained his comment on what it showed, which was in stark contrast to his account. Further, Mr Allen had concluded that the Claimant was not acting in self-defence without having heard from Prisoner A on that point. When Prisoner A absented himself from the disciplinary hearing, any reasonable employer would have required that the investigating officer revert to Prisoner A to take his evidence on what the recording showed. Finally, the ET concluded that based on their viewing of the recording, no definite answer could be arrived at that the Claimant did in fact use unnecessary force and combined with her mitigating circumstances, she should not have been dismissed.

The Employment Appeal Tribunal decision

Judge Eady sitting alone in the EAT, cited the relevant legal authorities in this case.

She explained that the reason for the Claimant’s dismissal was not contested between the parties (conduct being a potentially fair reason under sections 98(2) and (4) of the Employment Rights Act 1996 (ERA 1996)) but what was pertinent to the case was whether it was reasonable for the employer to treat this as a sufficient reason for the dismissal. Judge Judge Eady cited the decision from the case of British Home Stores Ltd v Burchell [1980] ICR 303 which provides useful guidance that when an employer has established its honest belief in the misconduct in issue, the question for the ET, applying a neutral burden of proof, is whether the employer had reasonable grounds in mind on which to sustain that belief, and whether, at the stage the employer formed its belief, it had carried out such investigation as was reasonable in all the circumstances. The employer’s decision-making in this regard is to be judged against the band of reasonable responses test.

Judge Eady explained that at the heart of the Respondent’s case on this appeal was that the ET failed to direct itself in accordance with this guidance. The ET failed to test the decision reached by the Respondent judged against the range of reasonable responses and effectively substituted its own view. The question for the Respondent had not been whether the Claimant had applied force – that was admitted and clearly visible on the recording – but whether the force applied was unlawful. The question for the ET was whether the dismissing officer’s decision was one that he could reasonably have reached. It was common ground that the use of force was unlawful unless the Claimant acted in self-defence. Whether or not she had was a fact-finding exercise to be conducted by the Respondent, not the ET. To conclude, as the ET apparently did that no reasonable employer could reach that conclusion was plainly wrong given the evidence available to the Respondent: the recording, sufficient in itself; the Claimant’s own admission that she had “lost it” and had failed to complete the relevant paperwork; and the fact that she had received relevant training. The ET had undertaken the fact finding afresh and had then considered whether the Respondent should have reached the conclusion it did, rather than assess whether it could have done.

The EAT went on to state that while it was a potential failing in the investigation that Prisoner A was not shown the CCTV footage, when it came to the decision to dismiss, it was apparent that Mr Allen proceeded on the basis that where there was a conflict between the recording and Prisoner A’s account, he preferred that which he could see for himself from the recording and this did not necessarily make it a faulty investigation process.

Our solicitors’ comments

Caroline Lewis, a specialist employment solicitor at Redmans, commented: “Where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the ET should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer. Any time an ET actually decides for itself whether a decision was fair or unfair, it may, as in this case, get firmly “slapped down” by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of reasonable responses. This makes winning unfair dismissal cases – especially where you’ve done something wrong, but your employer has overreacted by dismissing you – pretty difficult”.