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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Howe v. London Borough of Hammersmith and Fulham [2010] UKEAT 0528_10_2611 (26 November 2010) URL: http://www.bailii.org/uk/cases/UKEAT/2010/0528_10_2611.html Cite as: [2010] UKEAT 0528_10_2611, [2010] UKEAT 528_10_2611 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
For the Appellant | MR J SYKES (Representative) |
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal correctly addressed and applied s 98(4) in finding Hammersmith did not unfairly dismiss the Claimant for fraudulently claiming sick pay from Hammersmith while drawing pay from Brent, after being reasonably instructed to give up one or other job.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"The Employment Tribunal correctly state the law at para 2(2)(b) of their reasons. It is for the employer to show, in a misconduct case, that it genuinely believed the misconduct alleged (the reason for dismissal); the questions of reasonable grounds for that belief based on a reasonable investigation apply to the s98(4) question; since EA 1980 the burden of proof has been neutral (unlike the position in the pre-1980 case of Burchell).
I am of the opinion that the Employment Tribunal permissibly applied that self-direction to the facts as they reasonably appeared to the employer; they did not substitute their own view but correctly applied the range of reasonable responses test, particularly to the sanction imposed."
The legislation
The facts
"(a) 'You claimed dual employment with the London Borough of Hammersmith and Fulham and Brent having been expressly forbidden to do so', and
(b) 'You committed fraud by reporting sick with London Borough of Hammersmith and Fulham when you were physically attending work at the London Borough of Brent'."
"21. We consider that Ms Howe had admitted dual employment and made it plain at her investigation meeting and by her conduct in her applications to her teachers jobs in 2002 that she knew that she was only to have one job. We considered that her 2002 applications show that she was concealing from Brent her employment with Fulham and Hammersmith, because she knew that she had been given a clear instruction to relinquish one job. She disobeyed that instruction and the respondent was reasonable in so finding.
22. We consider that the investigation was thorough and fell within the range of reasonable responses. The investigators discovered the primary evidence and showed it to the decision makers. The primary evidence showed that Ms Howe had not only held dual employment but that there were occasions when she had worked for Brent during the day and had been off sick for Hammersmith and Fulham. Although we fully accept that there maybe occasions when an illness can come on during the day so that one is well enough to work during the day but ill at night or vise [sic] versa, we do not see how this could possibly happen for two consecutive days. Therefore, we considered that the belief held by the respondent was reasonably based upon the investigation."
The Claimant's case