Employment: Overstepping the mark

It is a well-established and longstanding principle of employment law that, when faced with a misconduct dismissal, an employment tribunal must not substitute its own view of the claimant's alleged conduct for that taken by the employer's disciplinary panel.

This is because it is not the tribunal's role to decide what it would have done had its members been sitting in the disciplinary hearing. Rather, it is the function of the tribunal to determine whether or not in coming to its decision the employer acted reasonably. As Mr Justice Pugsley stated in London Borough of Sutton v Kester UKEAT/0187/06/MAA (2006): “The substitution by a tribunal of its view of the matter, as opposed to looking at whether the Respondent's actions were within the range of reasonable responses, is not an empty legalistic forma. It goes to the very heart of the function of a Tribunal. Tribunals have neither the experience or the expertise nor the information