Thanks to David Leslie of Lyons Davidson for preparing this case summary.
Do allegations of bad faith have to be put to a dismissing officer in an unfair dismissal case?
Yes, if they are central to the employment tribunal's reasoning, held the EAT in Sec of State for Justice v Lown.
The Claimant was dismissed following an allegation that he had punched a prisoner in the back during a planned intervention.
The employment tribunal found that the dismissing officer was acting in bad faith and did not have a genuine belief in the Claimant's misconduct. However, that issue was not put to the dismissing officer, either during cross-examination or by the tribunal.
Upholding the appeal, HHJ Eady held that "the Respondent should have been given the proper opportunity to deal with the case" (paragraph 50). The EAT found that the employment tribunal had failed to consider whether the Respondent's conduct fell within the band of reasonable responses, substituting instead "the only correct standard of what the reasonable employer would have done" (paragraph 57).
The employment tribunal also should have considered a Polkey reduction when there was "a finding of substantive unfair dismissal" (paragraph 61).