The Claimant was dismissed for gross misconduct after an investigation into an allegation that after a private function he was hosting, he had kissed and sexually touched an employee of the British Embassy (an organisation that liaised closely with the British Council). The ET upheld his claim of unfair dismissal. Having received the ET’s judgment on liability, the Respondent took the decision to instruct an external, independent investigator to re-investigate these matters which concluded that the employee had been telling the truth when she alleged there had been sexual touching of her by the Claimant. The Respondent was aware that the ET may order the re-engagement of the Claimant: whilst they no longer wished to pursue their original submission that he had contributed substantially to his dismissal, they argued that the report showed there was a genuine and rationally based loss of trust and confidence in the Claimant both before and after his dismissal. The ET did not accept this and ordered that he be re-engaged. The Respondent appealed.

The EAT allowed the appeal. The issue of contributory conduct having been withdrawn by the Respondent, the ET had erred in nevertheless proceeding to determine whether or not the Claimant had actually committed the misconduct alleged; that was not a requirement of section 116(3)(c) Employment Rights Act 1996 and went beyond the ET’s function. The real issue for the ET was whether re-engagement was likely to be practical, given the Respondent’s stated belief that the Claimant had misconducted himself such that he could no longer be trusted in its employment. In this regard, however, the ET had wrongly held that it was irrational for the respondent to hold that belief based on the report of an independent external investigator. In reaching this conclusion, the ET had substituted its view as to what could constitute a “fair” investigation and as to what conclusion was to be reached as a result of such an investigation. That view seemed to be informed by the ET’s own conclusion regarding the Claimant’s conduct and its finding that the Respondent could not rationally rely on the independent investigator’s report was perverse.