Tribunals Should Not Substitute Own View for that of Employer in Unfair Dismissal Claims

In Kier Islington Ltd v Pelzman (UKEAT/0266/10), the Employment Appeal Tribunal (EAT) reiterated that a Tribunal should not substitute its own view for that of the employer when considering whether an employee has been unfairly dismissed.  Although this is a re-statement of existing case law, it is a useful reminder that Tribunals are (or should be) reluctant to interfere with an employer's assessment of what is right for its business and what the appropriate sanction is in cases of misconduct. 

Mr Pelzman was a driver and loader of building site rubble.  Instead of taking items downstairs, he threw them from the balcony of a second floor flat, causing injury to a resident.  Mr Pelzman knew that he was not allowed to engage in this practice.  Following an investigation, he was found guilty of gross misconduct and dismissed.  The Employment Tribunal did not criticise the fairness of the disciplinary procedure, but found that dismissal fell outside the range of reasonable responses due to the disparity of treatment compared with a similar incident a few years ago, which had been  dealt with by a final warning. The EAT upheld Kier Islington's appeal, finding that the Tribunal had impermissibly substituted its own view of the comparative seriousness between this incident and the previous incident.  It therefore declared that the dismissal was fair.