In Kisoka v Rung Ratnpinyotip t/a Rydevale Day Nursery, Kisoka (K) was dismissed for gross misconduct following an investigation where she was suspected as having started a fire in the nursery. The employer decided not to follow an independent appeal panel’s decision to uphold the appeal against dismissal. The panel had found there was insufficient evidence to conclude K was guilty. The employer decided that the panel’s decision was not clear, a number of reasons remained to support a belief that K was responsible, including failing to explain her movements, changing her evidence during the appeal and providing inaccurate information.

The tribunal found the dismissal fair, principally because there were still reasonable grounds to believe K was guilty and the employer’s concerns about the panel’s decision were reasonable. K contended that the EAT should lay down general guidance to the effect that an appeal panel decision must be followed by an employer in the absence of exceptional circumstances. She also argued that, if the employer was entitled not to follow the decision of the appeal panel in this case, she had not had an effective appeal hearing. The EAT rejected her appeal, holding that it would not place a gloss on the statutory test of reasonableness in S.98(4) of the Employment Rights Act 1996 (ERA 1996). On the evidence, K had not been denied an effective appeal hearing. The tribunal was entitled to reach that conclusion and the conclusion overall that K’s dismissal had been reasonable. There was no error of law.

This decision reinforces the point that the statutory test of fairness in S.98(4) ERA 1996 requires looking at matters ‘in the round’, taking all of the relevant circumstances into account. It also highlights that if an employer decides not to implement a decision made at appeal, there should be reasonable, objective grounds for doing so.

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