It is no part of the proper role of an Employment Tribunal (ET) to substitute its own view of disputed evidence for that of the employer. In one case (Secretary of State for Justice v Pinkerton), an ET fell into exactly that trap when it second-guessed an employer’s view of CCTV footage and upheld a prison officer’s unfair dismissal claim.
The officer, who was an experienced Band 3 Prison Officer at HM Prison Durham, had been accused of assaulting a prisoner. The prisoner’s account of what happened was in some respects contradicted by CCTV footage of the incident. However, a disciplinary panel found that the officer had used unnecessary force and had not acted in self-defence. She was summarily dismissed.
In ruling her dismissal unfair, the ET found that the investigation had been flawed in that the prisoner had not been questioned about the inconsistencies between his account and the footage. After viewing the footage, the ET also found that it did not support the conclusions reached by the panel.
In allowing the employer’s appeal against that decision, however, the Employment Appeal Tribunal noted that it was not a case that depended on which of the two accounts of the incident was preferred. The ET had based its decision not on the prisoner’s account but on what could be seen on the footage.
In assessing the finding that the officer had not acted in self-defence, the ET had based its conclusion on its own view of the footage. In failing to ask itself what the employer could reasonably have concluded from the footage, the ET had fallen into the substitution trap.
The officer’s claim was remitted for a fresh hearing before a differently constituted ET.
For advice on employment law matters, please contact Jonathan Leach, Director and Head of Employment on 01254 30 10 44 or complete our online enquiry form discuss your concerns with one of our team of expert advisors.