Employment Appeal Tribunal sets aside order for re-instatement of Italy-based UK cultural relations director

About this case:

• Citation:
  [2025] EAT 1
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  Mrs Justice Eady

Paul Sellers raised a claim of unfair dismissal against the appellant, which had employed him since 1990 and since 2014 as its country director for Italy, and successfully obtained an order that he be re-engaged. The appellant argued that the ET had gone beyond its function in seeking to determine whether or not the claimant had actually committed the misconduct alleged.

The appeal was heard by Mrs Justice Eady, President of the EAT, with employment judges Nick Aziz and Steven Torrance. Jane McCafferty KC and Spencer Keen appeared for the appellant and Robert Lassey for the claimant and respondent.

Grounds to doubt

On 16 December 2018, the claimant and his wife hosted a daytime social gathering at their flat in Rome. After the event, an employee of the British Embassy who had attended the gathering, ZZ, complained that when she went to leave the claimant had kissed her on the side of her mouth or on her lips, and placed his hands on her breasts, rubbing down in a sexual manner. Although accepting that he had kissed ZZ’s cheeks, in the normal Italian way, the claimant denied the allegation of inappropriate conduct.

Following an investigation and a disciplinary hearing, on 7 May 2019 the claimant was dismissed for gross misconduct. After an internal appeal was refused along with a later submission of further evidence, he presented a claim to the ET. The ET found that the claimant was dismissed because the decision-taker genuinely believed that he had touched ZZ’s breasts in a sexual manner but went on to find that this belief was unreasonably derived from an overly narrow view.

Having received the ET’s judgment on liability, the appellant instructed an independent barrister, Jack Mitchell, to re-investigate the matter. His report concluded that ZZ had been telling the truth when she alleged there had been sexual touching. However, at the remedy hearing, the ET concluded that there were grounds to doubt Mr Mitchell’s conclusions and found it was practicable for the appellant to re-instate the claimant.

On appeal, it was contended that the ET had misdirected itself in concluding that it was obliged to decide whether the claimant had committed the misconduct alleged, and applied the wrong legal tests when deciding whether re-engagement was practical. The respondent had expressly stated that it did not seek to prove as a fact that the claimant had committed the misconduct, and as such the ET was neither required nor permitted to decide this issue.

Substitution of view

In its judgment, the EAT said of the approach the ET required to take: “We do not consider that sub-section 116(3)(c) of the Employment Rights Act 1996 mandated the ET to make a finding as to whether the claimant had caused or contributed to his dismissal; rather, it required that, if the ET had made such a finding  it would then need to consider whether it would be just to order re-engagement.”

It continued: “Prior to the remedy hearing, however, the respondent made clear that it no longer sought to allege contributory fault. Ms McCafferty has observed that various reasons might have informed the respondent’s position, not least the difficulty of calling evidence from individuals (such as ZZ) who were not its employees and who were not based in this jurisdiction. As such, the question whether, as a matter of fact, the claimant had actually committed the alleged misconduct was withdrawn from the ET; it still had to determine the issue of practicability, but whether or not the claimant was guilty of the alleged assault was no longer a point before it. In those circumstances, we cannot see that sub- section 116(3)(c) ERA was engaged.”

Turning to the ET’s reasoning in rejecting the Mitchell report, the EAT said: “In reaching its conclusion that the respondent could not rationally rely on the conclusions of the Mitchell report, the ET considered that ‘inevitably, the exclusion of the claimant would lead to a distorted process’ and this amounted to ‘a systemic bias’ and that there were other failings in relation to the identification and obtaining of the relevant evidence, such that the material on which Mr Mitchell based his conclusions ‘was seriously limited and inadequate’. We are, however, troubled by these findings, which seem to us to evince a substitution of the ET’s view for that of both Mr Mitchell and the respondent.”

It concluded: “More generally, the ET failed to have regard to the evidence before it as to Mr Mitchell’s understanding of his terms of reference and the efforts he made to speak to the witnesses who had previously provided evidence, to others who had been identified but had not spoken to the respondent, and to seek additional evidence to further substantiate or disprove matters. In our judgement, having set the parameters for what it considered would constitute a ‘fair investigation’, the ET’s findings make clear that its assessment as to whether there was a rational basis for the respondent’s belief was very much informed by the conclusion it had itself reached as to the claimant’s culpability.”

On this basis, the EAT allowed the appeal and set aside the ET’s order for re-engagement.