Case 3325523/2017 · Employment Tribunal

Mr A McPhail (Counsel) For the v Respondent — 2019

Case reference: 3325523/2017
Decision date: 30 December 2019
Jurisdiction: England & Wales
Judge: Employment Judge Gumbiti-Zimuto Appearance
Venue: Reading

Indexed: 21 May 2026

Parties

1 named

Claimant

Mr A McPhail (Counsel) For the

Respondent

Key findings

Tribunal's reasoning

The tribunal dealt with unfair dismissal and wrongful dismissal claims brought by Mr I Khan and Mr M Ali against Oxford University Hospitals NHS Foundation Trust. Applying s.98 ERA 1996 and the Burchell / range of reasonable responses approach, it accepted that the case turned on conflicting accounts of an incident on 13 November 2016, with no CCTV of the office area where the alleged assault occurred. The tribunal also referred to the common-law test for wrongful dismissal, namely whether there had been an actual repudiatory breach justifying summary dismissal.

For Mr Khan, the tribunal accepted Mr Da Cruz's account and found on the balance of probabilities that Mr Khan assaulted him. It held that the respondent had a genuine belief, on reasonable grounds, that Mr Khan was guilty of misconduct and that dismissal would otherwise have fallen within the band of reasonable responses. However, Mr Khan's unfair dismissal claim succeeded because the disciplinary decision was taken before Mr Singh's evidence had been completed and properly considered, and the appeal did not cure that procedural defect. Mr Khan's wrongful dismissal claim failed because the tribunal found that the assault amounted to a repudiatory breach of contract.

For Mr Ali, the tribunal held that the same procedural defect made the dismissal unfair. It also found that the respondent had not clearly established what conduct by Mr Ali was said to amount to gross misconduct: the findings did not show more than presence at the scene, and the tribunal was not satisfied that mere presence, without more, justified dismissal. Mr Ali's wrongful dismissal claim succeeded because the respondent did not prove that his conduct amounted to an actual repudiatory breach of contract.

The judgment did not determine compensation. It directed that remedy would be dealt with at a later hearing, listed for 2 and 3 June 2020, with further disclosure, schedules of loss, and any witness evidence to be exchanged before that hearing.

Claims and outcomes

4 findings recorded

This case has mixed outcomes under at least one legal claim type. A tribunal can uphold some allegations and dismiss others under the same legal head, so rows below may represent separate issues or allegation groups from the judgment.

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Unfair dismissal	Mr I Khan: the tribunal held the dismissal was procedurally unfair because the disciplinary decision was taken before Mr Singh's evidence had been completed and properly considered; the appeal did not cure that defect.	Upheld	—	—
Wrongful dismissal	Mr I Khan: the tribunal found on the balance of probabilities that he assaulted Mr Da Cruz, and held that this was a repudiatory breach justifying summary dismissal.	Dismissed	—	—
Unfair dismissal	Mr M Ali: the tribunal held the dismissal was procedurally unfair for the same reason as Mr Khan's case, and also because it was not clear what conduct by Mr Ali was said to amount to gross misconduct or why dismissal was within the band of reasonable responses.	Upheld	—	—
Wrongful dismissal	Mr M Ali: the tribunal was not satisfied that the respondent proved, on the balance of probabilities, that Mr Ali's conduct amounted to an actual repudiatory breach of contract; presence at the scene was not enough on the evidence found.	Upheld	—	—

Legal tests applied

9 references

Official outcome judgment PDF

Gov.uk primary record

The official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.

Published on gov.uk under the Open Government Licence v3.0.

How we got this data

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