Foley v Post Office; Midland Bank plc v Madden [2000] IRLR 82

Facts

These cases included two appeals from Employment Appeal Tribunal ('EAT') judgements. The first appellant firm filed an appeal against a ruling finding that the first respondent Foley was wrongfully sacked. Foley had been allowed leave to attend to his wife, but another employee claimed that he was drinking at a neighbouring public house. Staff were unable to locate him, but an internal investigation was conducted, and Foley was dismissed. The EAT overturned an employment tribunal's decision that the dismissal was reasonable.

The second appellant corporation Midland Bank (formerly known as "HSBC") filed an appeal in response to a finding that Madden, the second respondent, had been unfairly dismissed. Madden has been accused by HSBC with stealing debit cards that were then used fraudulently to buy products. A unanimous employment tribunal determined that Madden had been dismissed unjustly, and the EAT rejected HSBC's appeal.

Held

1. In the first case the EAT lacked jurisdiction to consider the appeal since it included no debatable matters of law. As a result, it was not entitled to overturn the employment tribunal's decision. The first appeal was permitted, and the decision of unfair dismissal was reversed.

2. In the second instance, the tribunal's reasoning for deciding that Madden had been unjustly dismissed included an error of law. Madden's claim should have been rejected if the EAT had accepted the appeal. Instead of considering whether Madden's dismissal was within the range of acceptable responses of a reasonable employer, the tribunal had fallen into the trap of substituting itself for HSBC, the employer. No reasonable tribunal could have found that HSBC had failed to undertake a reasonable investigation or that the firing was unreasonable. In the second instance, the judgement of unfair dismissal was overturned.

3. The employer was the appropriate person to investigate suspected misbehaviour. The tribunal's task was to determine whether the investigation was reasonable in the circumstances and whether the dismissal decision was justified in light of the investigation.

4. Employment tribunals should continue to apply the legislation provided in Employment Rights Act 1996 sections 98(1), 98(2), and 98(4), interpreting those provisions as the instant court and the EAT understood the analogous provisions in Employment Protection (Consolidation) Act 1978 sections 57(1) to (3). The proper method was to determine if the dismissal was within a "band or range of reasonable responses" (Iceland Frozen Foods v Jones).