Employment Tribunals

Neutral Citation Number: [2026] EAT168 Case Nos: EA-2024-000244-BA EA-2024-000245-BA EMPLOYMENT APPEAL TRIBUNAL Rolls Building Fetter Lane, London, EC4A 1NL Date: 6 November 2026 Before: HER HONOUR JUDGE TUCKER - - - - - - - - - - - - - - - - - - - - - Between: DEPARTMENT FOR WORK AND PENSIONS Appellant - and – TASNEEM KIANI Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A Tinnion (instructed by TLT LLP) for the Appellant Ms L Mankau (instructed by Thompsons Solicitors) for the Respondent Hearing date: 2 July 2026 - - - - - - - - - - - - - - - - - - - - - JUDGEMENT SUMMARY Unfair Dismissal; Contract of employment The Claimant, a long-serving DWP Work Coach, was summarily dismissed after accessing her adult son’s Universal Credit account on five occasions without a legitimate business reason or authorisation. The Employment Tribunal upheld her claims of unfair and wrongful dismissal, ordered reinstatement and assessed contributory fault at 20%. The employer’s appeals concerned substitution, the assessment of gross misconduct, the relevance of mitigation to the question of whether a repudiatory breach of contract had occurred, and the adequacy of the reasons for the contributory fault assessment. The appeals were allowed. Despite correctly directing itself, the Tribunal substituted its own assessment of mitigation and the appropriate sanction for that of the employer, incorrectly treating the disciplinary policy as mandating a final written warning rather than providing guidance. The Tribunal’s reasoning did not clearly separate the different legal tests and analysis required in, on the one hand, a claim of unfair dismissal for the potentially fair reason of conduct, and on the other, a claim of wrongful dismissal. In the former claim it was required to consider the reasonableness of the employer’s view of the seriousness of the misconduct and the resulting loss of trust. In determining wrongful dismissal, the Tribunal was required to assess, objectively, whether the conduct said to amount to a repudiatory breach, had taken place and was such a breach. In this case, the contractual and statutory enquiries had become blurred. The reasons given for the reduction of 20% applied to compensation were not adequate. Introduction 1. This is an appeal by the Department for Work and Pensions against the Judgements of the Employment Tribunal, Employment Judge Knight, sitting at East London Employment Tribunal. The Appellant is the Respondent employer and the Claimant is the Respondent to this appeal. I refer to the parties as they were before the Employment Tribunal. 2. By a Judgement and Written Reasons dated 16 January 2024, the Tribunal upheld the Claimant’s complaints of unfair dismissal and wrongful dismissal. In its Remedy Judgement, the Tribunal ordered reinstatement and determined that any compensatory award should be reduced by 20 per cent for contributory conduct. 3. The Respondent lodged two appeals, one against the liability decision, and one against the remedy decisions. Following a preliminary hearing before Lord Fairley on 4 March 2024, Grounds 4, 5, 8 and 9 of the liability appeal, and the sole ground concerning remedy, were permitted to proceed to a full hearing. 4. I have considered the parties’ oral submissions, the appeal bundle, the supplementary bundle, the agreed chronology, the parties’ skeleton arguments and the joint authorities bundle. Factual Background 5. The Claimant began working for the Respondent in 1997. By 2019 she was employed as an Executive Officer and worked as a Work Coach at Redbridge Jobcentre Plus. She was dismissed with effect from 11 August 2020. 6. One of the Respondent’s responsibilities is to administer welfare benefits nationally. To do this, it holds confidential, personal information on its electronic systems. During the course of her employment, the Claimant had completed Security and Resilience training. The Respondent’s ‘Information Security Policy’ prohibited employees from accessing customer records without a legitimate business reason or appropriate authorisation. The policy stated that repeated access to the records of a family member without such reason or authorisation could amount to gross misconduct. It defined conduct which could amount to gross misconduct at paragraph 1.2 as set out below. It was agreed that the Claimant’s actions, described below, fell into this category: “1.2 An employee accesses or browses through multiple customer records or makes multiple accesses to the same record, regardless of whose record it is and including their own record, or those of their family, friends or celebrities without a legitimate business reason or appropriate authorisation. The access, browsing or searches may happen on the same day or over a period of time.” 7. On 2 December 2019 the Claimant’s adult son applied for Universal Credit. The Claimant was not his Universal Credit adviser. However, on 3, 4, 10, 12 and 17 December 2019 she accessed his Universal Credit account on the Respondent’s systems. The Claimant did not dispute the fact that she had no legitimate business reason or any authorisation to do so. 8. On 20 December 2019 the Claimant told her line manager, Ms Tanner, that she had accessed her son’s Universal Credit account. On 2 January 2020 the matter was referred internally to Counter Fraud and Investigation. An investigatory interview arranged for March 2020 did not proceed. The Claimant was later invited to respond in writing. An investigation report was completed on 29 May 2020. Disciplinary proceedings followed. 9. Mrs Reilly was appointed as the Respondent’s disciplinary decision-maker. A disciplinary hearing took place on 23 June 2020. Further enquiries were undertaken thereafter, including interviews with members of staff in July and August 2020. The Claimant was not given an opportunity to comment following those further investigations. 10. By letter dated 10 August 2020 Mrs Reilly summarily dismissed the Claimant for gross misconduct. The Claimant appealed. Following an appeal hearing before Mrs Billings on 25 September 2020 the appeal was dismissed. The decision on the appeal was set out in a letter from Mrs Billings dated 9 October 2020. 11. The Claimant presented her claim to the Tribunal on 9 January 2021. The final hearing took place between 10 and 12 January 2024. The Respondent called Ms Tanner, Mrs Reilly and Mrs Billings. The Claimant gave evidence on her own behalf. Judgement was delivered orally on 12 January 2024 and Written Reasons followed on 16 January 2024. The Tribunal’s decision 12. The Tribunal found that on each occasion, when the Claimant accessed the Respondent’s computer system, she had to confirm that she accepted the Respondent’s Acceptable Use Policy. That provided: “Only access Citizen data where there is a valid business need that is appropriate to your job role – this means that you must not, under any circumstances, access, or attempt to access, your own DWP records or the records of friends, family members or ex partners on any Departmental computer, paper file or benefit system, irrespective of your motivation. You must not access the records of other customers, including celebrities, without authorisation and a legitimate business reason.” 13. The Tribunal set out the following facts regarding the Claimant’s personal and health issues at the time that she committed the conduct which led to her dismissal: “11. The Claimant experiences multiple disabilities which impact on her health and daily life. Her disabilities include urticaria, asthma, depression, and work-related stress. 12.By the time of her dismissal the Claimant had experienced depression for about 10 years. She was prescribed paroxetine to treat her depression. Around June or July 2019 the Claimant’s prescription was set at 10mg. In November 2019 her prescription was increased to 20mg. Paroxetine had side effects for the Claimant of drowsiness and problems sleeping, and the increase in dosage caused her cognitive difficulties. 13. The Claimant’s son has some degree of learning difficulties. The Claimant assists him with various aspects of his life. “ The Tribunal also found as a fact that the Claimant accessed her son’s account, first, to check that the account was up and running correctly; then, to check who his Universal Credit appointment was booked with; and, then, to check his appointment details, because the appointment was booked with her. The Tribunal found as a fact that that had been the case, rejecting the Respondent’s alternative case that such an appointment had not been made. Subsequently the Claimant accessed the account to check that the appointment had been changed. The Tribunal also found as a fact that the Claimant, subjectively, did not believe that that which she did was wrong at the time that she acted as she did. It was accepted by all that no malicious or fraudulent activity took place, no confidential information was accessed, that her son had both consented and had asked her to access his information but that nonetheless, her actions were a clear breach of the Acceptable Use Policy. 14. The Claimant informed the Respondent that she had accessed her son’s account. No steps were taken by the Respondent regarding that matter until, at a later stage, another member of staff informed the same manager the Claimant had spoken to and told her that he had been asked by the Claimant to access her son’s account. The manager, Ms Tanner, then informed a more senior colleague and an investigation took place. 15. The Tribunal set out in detail relevant parts of the Respondent’s policies as follows: “The Respondent’s policies relevant to the disciplinary procedure 29. The Respondent has a policy on “How to: Deal with security incidents and breaches of information security”. This sets out a breach of information security as including “Browsing computer or paper records of friends, colleagues or customers without appropriate authorisation and a legitimate business reason”. The policy sets out multiple levels of misconduct. It states in particular that minor misconduct action may be appropriate and proportionate where certain principles apply, including that there is no malicious or suspicious intent, there is no known harm, and there has been no reputational damage. There are further such principles, and the policy is unclear about whether all such principles must apply for minor rather than serious misconduct action to be appropriate and proportionate. 30. The policy on “How to: Deal with security incidents and breaches of information security” goes on to deal with mitigation. It states: “Mitigating circumstances are the events or factors beyond an individual’s wilful control that have some bearing on the information security breach. Mitigation should help explain or show that the individual had reason to act or behave in a particular way. Although mitigation can never undo the misconduct and does not negate the fact that a breach has occurred, it may influence the outcome as it can be used to reduce the penalty. See How to assess the level of misconduct and decide a discipline penalty for further advice.” 31. The policy on “How to: Deal with security incidents and breaches of information security” then sets out an “information security scenario matrix” which explains possible outcomes for different security breaches. Within the criteria of “Browsing and unauthorised access to records” the most serious security breach considered is “An employee has authorisation to access personal data or information as part of their normal duties. They access records without legitimate business reasons and appropriate authorisation and use this information themselves (or on behalf of a third party) for personal gain, or to falsify claims for benefits.” This type of security breach did not occur in the Claimant’s case, and no one alleges that it did. This type of security breach is automatically treated as gross misconduct. The only possible outcome listed is dismissal, except in cases “where an employee was acting under extreme duress – violence or threat of violence.” 32. A different breach is “An employee accesses or browses through multiple customer records or makes multiple accesses to the same record, regardless of whose record it is and including their own record, or those of their family, friends or celebrities without a legitimate business reason or appropriate authorisation. The access, browsing or searches may happen on the same day or over a period of time.” Everyone accepts that this is the relevant type of security breach for the Claimant’s case. This type of security breach is automatically treated as gross misconduct, with the further clarification that “When determining the appropriate level of penalty, the manager will consider the motive of the employee in accessing the records, the amount of records accessed and any resulting impacts”. Two possible outcomes are then provided: dismissal, and final written warning. Dismissal is said to be appropriate where the manager “has good reason to believe the actions to be suspicious or malicious and / or the employee can provide no legitimate reason or reasonable justification for accessing the records”. In contrast, a final written warning is said to be appropriate where “the employee can provide some reasonable explanation as to why they may have accessed the records or some other relevant mitigation”. 33. A third breach is “An employee accesses or browses through customer data and records without legitimate business reasons or appropriate authorisation. This may also include accessing their own record, or those of their family, friends or celebrities on one single occasion.” This is treated as serious misconduct, and dismissal is not a possible outcome. The severity of the warning depends on whether the employee had a legitimate reason or reasonable justification for accessing the record, or alternatively whether the employee had some other relevant mitigation. 34. Inadvertent access to the wrong information is treated as not constituting misconduct. 35. The Respondent has a policy on “How to: Assess the level of misconduct and decide a discipline penalty”. This provides in particular as follows: “12. In deciding whether to apply a penalty and the level of any penalty to a proven act of misconduct, Decision Makers will always consider the motives of the employee concerned and the impact or likely impact of the misconduct. They must also consider and mitigating factors put forward by the employee. Mitigation refers to something about the case that justifies a lower penalty or outcome than the norm. 13. Mitigation may take many different forms and it is for the individual to put forward mitigating factors together with supporting evidence, if available. Such factors should always be considered before deciding the penalty. Typical examples may be (this list is not exhaustive): • cases of ill-health or conduct due to medication • issues related to disability, for example where the condition can influence behaviour • provocation, for example if the employee felt provoked in some way • exceptional pressures upon the employee • serious personal trauma • the employee may appear to have been acting out of character, particularly where they have an unblemished record • the employee may have volunteered information about the misconduct and gives an explanation prior to any disciplinary action being started. […] 16. Where misconduct has been proven, the Decision Maker should decide on a penalty consistent with the seriousness of the misconduct. Consistency does not necessarily mean that the same penalty must be applied in every instance of the same act of misconduct. Each case must be looked at on its own merits. Any relevant circumstances should be taken into account and the same procedure be applied in addressing similar instances of the same misconduct.” “Note: The Decision Maker must consult Civil Service HR (CSHR) Casework to discuss an appropriate penalty in all cases where the initial assessment of the level of misconduct is serious or gross. This is to ensure that penalties issued for misconduct are consistent across the department.” 16. An investigation took place, leading to a disciplinary hearing before Mrs Reilly who gave evidence that she took advice from HR and made some further enquiries after the disciplinary hearing. She did not provide the Claimant with an opportunity to comment on the outcome of those further enquiries, including in particular when the Claimant had commenced new medication which then had an impact on her cognition for a period of time. The Judge found as a fact that Mrs Reilly and the note taker during the disciplinary hearing did not pay proper attention to accurately record when the Claimant started to take the new medication, despite that being important because of its impact on the Claimant’s cognitive abilities. The Judge found that Mrs Reilly, “proceeded on an incorrect basis”, despite having the correct information available to her (paragraph 52). 17. The Judge found that Mrs Reilly took the view that the Claimant’s case fell into, “the most severe circumstances” because there were multiple accesses to the Claimant’s son’s account without a legitimate business reason (paragraph 56). The Judge noted that Mrs Reilly accepted that the Claimant's motives have been benign and that the impact of her actions was the loss of trust which had arisen because of breach of the Acceptable Use Policy. The Judge recorded that Mrs Riley did not give consideration to consistency with other decisions in any detail. Mrs Riley wrote to the Claimant on the 10th August 2020 to inform her of her decision that the Claimant was to be dismissed with effect from that date. 18. The Claimant appealed against that decision to dismiss her on the 24th August 2020. The appeal was heard by Mrs Billings. The Judge found that Mrs Billings had already decided to reject the Claimant's appeal before she had received advice from Occupational Health on the impact of the Claimant's medication upon her (paragraph 66). Further, the Judge found that Mrs Billings did not inform HR about a similar case where an employee had not been dismissed which had been raised by the Claimant’s trade union representative through the appeal process. The Judge concluded that, therefore, when she contacted HR to discuss the appeal HR, “would not have known to look for the case to which [the trade union representative] had referred.” (Paragraph 67). 19. The Judge found that Mrs Billings took the view that there could be no reasonable justification for an employee's actions where there was no legitimate business need for access the account. He stated that that meant, “despite what was written in the disciplinary policy, an employee could not rely on a reasonable justification to mitigate the sanction that would be applied to them; only extraneous matters could act as some form of mitigation”. The Judge found that Mrs Billings also took the view that the impact of the access was not relevant because there had been a breach of the policy. The Judge found that Mrs Billings did not take into account the impact of the Claimant's son's special needs and the fact that that he was reliant upon her. (Paragraph 68). The Judge also rejected Mrs Billings evidence that she had received advice from Occupational Health that the Claimant's actions would not have been affected by her medication on five separate occasions. The Judge found as a fact that Mrs Billings was not told this by Occupational Health (paragraph 69.) 20. The Judge recorded that Mrs Billings regarded the Claimant's length of service as an aggravating factor because she had sufficient experience/ long service to know and understand the relevant policy. She had been aware that the Claimant had confessed her misconduct to her line manager prior to the initiation of any disciplinary proceedings. 21. The Judge accurately set out relevant principles of law, including a reference to British Home Stores v. Burchell and Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94: an investigation should be looked at as a whole when assessing the question of reasonableness. The Judge correctly directed himself against substitution. The Judge recorded that, as set out in Sainsbury's Supermarkets Ltd v. Hitt 2003 ICR 111, the objective standard of a reasonable employer should be applied to all aspects of the question of whether the employee had been fairly and reasonably dismissed, including the reasonableness of the investigation. 22. In respect of the claim wrongful dismissal, the Judge set out that in Laws v. against London Chronicle Newspapers Ltd [1959] WLR 698 Lord Evershed MR held, in relation to the test of wrongful dismissal that the question must be, “if summary dismissal is claimed to be justifiable, whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service”. 23. The Judge set out his conclusions on liability at paragraph 87 and the following paragraphs of the Reasons. He stated that the decision makers, Mrs Riley at dismissal and Mrs Billings at appeal, genuinely and honestly believed that the Claimant had committed misconduct. He stated that they had reasonable grounds for that belief: the misconduct was admitted. The Judge then turned to consider the issue of whether the investigation was reasonable. He concluded that relevant information was gathered but that the problem lay with what was then done with the information. At paragraphs 90 to 95 the Judge stated as follows: “91. I then consider whether dismissal was a fair sanction. This is a point where it is particularly important not to substitute my judgement for that of the Respondent. In assessing this issue, great assistance can be derived from the Respondent’s own policies. The policies provide that in circumstances involving this type of misconduct, dismissal is a possible sanction, but so is a final written warning. There are criteria for when each is appropriate. In all cases there will have been a breach of the Acceptable Use Policy, meaning that there was no legitimate business reason for access to data. That determines guilt. In determining sanction under the policy, dismissal is appropriate only in the most severe cases. Further guidance provides that what must be considered when deciding whether to dismiss are whether (i) actions are suspicious or malicious; (ii) there is no legitimate reason or reasonable justification for access; and (iii) there was some other relevant mitigation. 92. Based on the material of which they were aware at the time, neither Mrs Reilly nor Mrs Billings can have believed that this case was one of the most severe cases. The only possible less serious cases involve fewer accesses, although more than 1 access because according to the policy a single access would amount to a lower level of misconduct. “Severe cases”, as they knew, mean cases where there has been something to make the situation worse than this. They knew that because they accepted the motive of the Claimant was benign and there was no gain or loss caused to anyone. If they had critically applied their minds to the facts of which they were aware then they would each have known that the pressure placed on the Claimant and (for Mrs Billings) the cognitive effects of the Claimant’s change in medication meant that she had a reasonable justification for access, this not meaning the same thing as a legitimate business need, a fact which they ignored but which is unambiguous from the policy. They were both also aware that the Claimant had other relevant mitigation. In this regard, almost all of the mitigation examples provided in the Respondent’s policy were present, as both Mrs Reilly and Mrs Billings were aware: cases of ill-health or conduct due to medication; issues of disability; exceptional pressures upon the employee; acting out of character where there is a long unblemished record; and volunteering information about the misconduct and explaining it before disciplinary action is started. Mrs Reilly and Mrs Billings each had all the knowledge necessary for this to fall into the category where their policy mandated that a final written warning would be given. 93. To explain this another way, Mrs Reilly and Mrs Billings considered the issue of breakdown of trust too early in their decision-making process. They considered whether trust had broken down prior to considering mitigation, finding that the result of the Claimant’s actions was a breakdown of trust. From that point there was no rescuing the Claimant’s situation with any mitigation. What the decisionmakers should have done according to their policy was consider the case in the round, note that there were no negative consequences of the Claimant’s misconduct, then consider mitigation, and finally determine whether trust had broken down. 94. The Respondent had a fair structure for their decision-making set out in their policy which a reasonable employer would use in determining whether to dismiss. The failure to follow the policy does not automatically make the decision to dismiss an unfair sanction. However, in the circumstances of this case I take that fair policy as a starting point and consider all of the overwhelming mitigating factors in this case which were known to Mrs Reilly (and then to Mrs Billings), and conclude that no reasonable employer would impose dismissal as a sanction for the misconduct in this case. 95. As a result, the dismissal was substantively unfair.” 24. The Tribunal also found that the decision to dismiss the Claimant was procedurally unfair (paragraphs 96-101). 25. In relation to wrongful dismissal, the Judge recorded that, when taken through the relevant policies during the course of cross-examination, the Claimant accepted that her conduct amounted to gross misconduct. The Judge stated that it was, nevertheless, required to decide objectively whether the conduct amounted to gross misconduct. He stated: “105. However, I conclude that the conduct in this case was not of sufficient seriousness as to constitute repudiatory breach of contract. The Respondent’s own policy makes clear that once all of the factors were taken into account, the only correct outcome was a final written warning. Although the policy labels the Claimant’s misconduct as gross misconduct, this is not in and of itself conclusive from a legal standpoint of whether it was gross misconduct. 106. When in cross-examination the Claimant was taken through the policies which labelled her conduct as gross misconduct, she accepted that her conduct was gross misconduct. However, this is of little use to the Tribunal in assessing whether in law it was gross misconduct, because the Tribunal must apply a test based on legal definitions of what amounts to gross misconduct, rather than simply accepting that the Respondent’s policy documents correctly apply the legal label of gross misconduct to the relevant conduct. 107. In this case there was not a breach of the implied term of trust and confidence. The conduct complained of was not such as to show that the Claimant had disregarded the essential conditions of the contract of service. When the facts of the case are looked at in the round, and the mitigation is considered, it is apparent that a fundamental breach did not occur. As a result there was no right on the part of the employer to dismiss without notice. 108. In all the circumstances the Respondent and in particular each of its decisionmakers, with the information that they had available at the time of their decisions, did not act reasonably in treating the admitted misconduct as a sufficient reason for dismissing the Claimant, and in particular in treating the Claimant’s actions as gross misconduct. When regard was had to the Respondent’s policy as a whole, notwithstanding that the policy describes the conduct as gross misconduct, it was not gross misconduct and did not justify dismissal. 109. As a result, the Claimant was wrongfully dismissed.” 26. The Tribunal ordered reinstatement as a remedy. Under the heading “Justice of ordering reinstatement” the Judge found that the Claimant’s conduct was culpable and blameworthy and had contributed to her dismissal. It ordered reinstatement and assessed contributory fault at 20 per cent. Paragraph 40 provided as follows: “40. The Claimant committed misconduct. Her actions were culpable and blameworthy conduct, and this fact is not changed by the Claimant’s mitigation. It is accurate to say that the misconduct was a factually causative factor in her dismissal inasmuch as, if she had not committed misconduct, then the disciplinary proceedings would not have commenced. However, as I found in the Liability Judgement, no reasonable employer fully aware of the circumstances and applying the Respondent’s disciplinary policies correctly would have dismissed the Claimant. The actual cause of the dismissal was the Respondent’s managers’ misinterpretation of the Respondent’s policies. Nonetheless, the misconduct cannot be ignored. The Claimant contributed by her misconduct to her dismissal. This is a matter to which I give very significant weight in determining whether reinstatement should be awarded. If I was ordering compensation, then I would make a reduction of 20% to take account of this. “ Material before the Judge 27. I consider that it is relevant to set out the paragraphs of the policy which the Judge referred to in paragraphs 31-33 of his Reasons which are reproduced above in this Judgment at paragraph 15: “9. Mitigation Mitigating circumstances are the events or factors beyond an individual's wilful control that have some bearing on the information security breach. Mitigation should help explain or show that the individual had reason to act or behave in a particular way. Although mitigation can never undo the misconduct and does not negate the fact that a breach has occurred, it may influence the outcome as it can be used to reduce the penalty. See How to assess the level of misconduct and decide a discipline penalty for further advice. 10. Understanding the consequences of breaching information security policies Information security is important and breaches can, in the most severe circumstances, result in dismissal. Not reporting a breach, or suspected breach, is in itself a disciplinary matter. This table outlines a number of scenarios that represent the most common types of breaches within the business. It is not designed to cover every possible incident and should only be used as a guide to help support the thought process of decision making. Please note this tool does not replace the need to seek advice from the Security Advice Centre and report breaches to the Security Incident Reporting Team using the Security Incident Referral Webform or to refer to relevant security policies The DWP Discipline policy and procedures must be followed when taking disciplinary action. Before deciding on disciplinary action it is important to consider the circumstances of the case as a whole and any mitigation. It is essential for the Decision Maker to follow the guidance set out in the HR Decision Maker's Guide to ensure the process and outcome is fair, reasonable and transparent. Advice must always be sought from the Civil Service HR Casework team on on 0845 241 5352 on disciplinary cases involving breaches of information security. The penalties mentioned here are for guidance only and you should refer to take. General advice can also be found in How to assess the level of misconduct and decide a discipline penalty. 11. Information Security Scenario Matrix 1. Browsing and unauthorised access to records 1.1 An employee has authorisation to access the personal data or information as part of their normal duties. They access records without legitimate business reasons and appropriate authorisation and use this information themselves (or on behalf of a third party) for personal gain, or to falsify claims for of benefits. Gross misconduct Possible outcome Dismissal - would be the appropriate penalty in all cases where access to the data was used for inappropriate reasons. The only exception to this may be where an employee was acting under extreme duress - violence or threat of violence. 1.2 An employee accesses or browses through multiple customer records or makes multiple accesses to the same record, regardless of whose records, or those of their family, friends or celebrities without a legitimate business reason or appropriate authorisation. The access, browsing or searches may happen on the same day or over a period of time. Gross misconduct When determining the appropriate level of penalty, the manager will consider the motive of the employee in accessing the records, the amount of records accessed, and any resulting impacts Possible outcome Dismissal - This will be appropriate if the manager has good reason to believe the actions to be suspicious or malicious and/or the employee can provide no legitimate reason or reasonable justification for accessing the records Final Written Warning – This may be appropriate if the employee can provide some reasonable explanation as to why they may have accessed the records or some other relevant mitigation 1.3 An employee accesses or browses through customer data and records without legitimate business reasons or appropriate authorisation. This may also include accessing their own record, or those of their family, friends or celebrities on one single occasion. Unlike scenario 1.2, that involved multiple records or multiple accesses to the same record, under this scenario the employee accessed only one record on only one occasion. If the manager has good reason to believe that the single access was suspicious or made with the intention of personal gain, they should consider under scenario 1.1 Serious misconduct The manager will consider the intention of the employee in accessing the record and any mitigation presented to determine the most appropriate penalty Possible outcome Final Written Warning – this would normally be appropriate if the employee has no legitimate reason or reasonable justification for accessing the record. First Written Warning – This may be appropriate if the employee can provide some reasonable explanation as to why they may have accessed the record or some other relevant mitigation 1.4 An employee is given an incorrect NINO by accident by No misconduct No further action 28. In paragraph 10 of the Policy set out above, the Policy provides, “the penalties mentioned here are for guidance only and you should refer to the disciplinary policy for a fuller indication of mitigation and what action to take”. In addition, in respect of the type of conduct it was agreed the Claimant’s conduct came into (set out in paragraph 1.2 above) the possible sanction outcomes were expressed, not as directives, but as outcomes which may be appropriate. Dismissal was indicated as appropriate if there was no legitimate reason or reasonable justification for accessing the records. A final written warning was indicated as one which may be appropriate if the employee can provide some reasonable explanation as to why they accessed records, or some other relevant mitigation. Grounds of Appeal and the parties’ submissions Five grounds of appeal were considered at the full appeal. Ground 5: substitution 29. The Respondent submitted that the Judge, despite a correct self-direction, erred by adopting a substitution mindset when considering the fairness of the dismissal in particular by substituting his own assessment of the level of severity of the Claimant’s misconduct and the relevance and adequacy of her mitigation and ultimately reaching a conclusion on fairness based on his own assessment rather than applying established principles in order to determine whether the dismissal fell within a band of reasonable responses open to a reasonable employer. The Respondent relied upon the EAT decision in Vaultex UK Ltd v Bialas [2024] EAT 19. The Respondent submitted that a correct self-direction does not immunise a decision from scrutiny where the substance of the reasoning reveals substitution. 30. The Claimant submitted that the Judge repeatedly directed himself against substitution, considered the state of knowledge of the decision-makers and used the Respondent’s own policy as an objective framework. The Judge expressly acknowledged that failure to follow policy did not automatically make dismissal unfair. The Claimant submitted that the Judge’s conclusion that no reasonable employer would dismiss was a correct application of the relevant statutory test rather than an assertion of what the Tribunal itself would have done. The Claimant relied upon Fuller v London Borough of Brent and Newbound v Thames Water Utilities Ltd appropriately reminding this appellate Tribunal that it must not interfere with an Employment Tribunal’s decision too readily – because of a difference of phrasing or expression of reasoning. Rather, if the Tribunal properly directs itself on the law (asking whether the dismissal fell within the band of reasonable responses under s.98(4)), its multi-factorial judgement should be respected unless it committed a clear error of law Ground 8: it was perverse to conclude that the Claimant’s conduct was not gross misconduct 31. The Respondent submitted that the issue of whether the acts amounted to gross misconduct was not raised as a matter which was disputed by the Claimant until closing submissions and that the Claimant’s case as then argued had not been properly or fairly advanced during the hearing: the Claimant admitted that her conduct amounted to gross misconduct in cross examination; it was not put to the Respondent’s witnesses that her admitted actions did not amount to gross misconduct during the course of cross examination. The specific steps which the Claimant took were identified as matters of potential gross misconduct within the Defendant’s own policy. Given the repeated unauthorised access to sensitive records, it submitted that no reasonable Tribunal could conclude that the conduct was not gross misconduct. 32. The Claimant submitted that the label attached by a party or an employer’s policy to particular conduct is not determinative of whether such conduct is gross misconduct or, ultimately, a claim of wrongful dismissal. It was submitted that the Tribunal was required to decide objectively whether the conduct was sufficiently serious to amount to a repudiatory breach. Relying upon Adesokan v Sainsbury’s Supermarkets Ltd, Mbubaegbu v Homerton University Hospital NHS Foundation Trust and extracts from Harvey, the Claimant submitted that the question involved an evaluation of the primary facts and an exercise of judgement and that the Tribunal was entitled to conclude that the common law threshold was not met notwithstanding the policy wording and the answers given in cross-examination. Ground 4: failure to consider whether it was reasonable for the employer to conclude that the admitted conduct amounted to gross misconduct 33. The Respondent submitted that the Tribunal omitted a necessary part of the analysis required by s.98(4) of the Employment Rights Act 1996: whether it was reasonable for the dismissing officer and appeals officer, Mrs Reilly and Mrs Billings respectively, to characterise the five occasions of unauthorised accesses as gross misconduct. The Respondent submitted that, instead, and in error, the Tribunal based the subsequent analysis not on the reasonableness of the employer’s belief, but on his own assessment of whether the conduct amounted to gross misconduct. In this context the points raised in respect of Ground 8 were also relevant. This error then, it was submitted, fatally infected the analysis of the fairness of the dismissal. 34. The Claimant submitted that s.98(4) of the Employment Rights Act 1996 (“ERA 1996”) does not require a Tribunal to determine whether conduct carries the label “gross misconduct”. Relying upon Hope v British Medical Association, the Claimant submitted that the relevant enquiry requires a Tribunal to consider and answer the familiar Burchell questions, followed by consideration of whether dismissal fell within the range of reasonable responses. It was submitted that the Tribunal undertook that analysis and that classification of the conduct was not a separate legal prerequisite. Ground 9: the Tribunal erred by taking the Claimant’s mitigation into account when determining whether there had been a fundamental breach of contract 35. The Respondent submitted that the test for fundamental breach is objective and contractual: the circumstances which induced the breach, and mitigation relevant to sanction, cannot alter the objective character of the conduct. It relied upon Wadham Stringer Commercials (London) Ltd v Brown, Mahmud v Bank of Credit and Commerce International SA and Bournemouth University Higher Education Corporation v Buckland. It argued that The Tribunal therefore erred when it stated that no fundamental breach occurred once the facts and mitigation were considered in the round. 36. The Claimant accepted that circumstances inducing a breach are not invariably relevant but submits that the Tribunal did not err: rather it considered the implied term of trust and confidence. The objective enquiry included whether the conduct was calculated or likely to destroy or seriously damage the relationship and whether there was reasonable and proper cause. Relying upon XX v YY, it was submitted that the reasons for the conduct and the surrounding circumstances were relevant to the gravity of the breach and therefore properly considered. Ground 10: failure to give adequate reasons for the assessment of contributory fault at 20% 37. The Respondent submitted that the reasons for the 20% reduction were insufficient. It contended that s.123(6) of the ERA 1996 required the Tribunal to focus upon the Claimant’s culpable or blameworthy conduct and the extent to which that conduct caused or contributed to the dismissal. Relying upon Topps Tiles plc v Hardy and Renewi UK Services Ltd v Pamment, it submitted that the Tribunal impermissibly limited the reduction by asking whether the Claimant would have been dismissed had the Respondent properly applied its policy. 38. The Claimant submitted that the remedy judgement must be read together with the liability reasons. On that basis, the Tribunal sufficiently identified the conduct, found it culpable and blameworthy, assessed its causal contribution, and explained why a reduction of 20% was just and equitable. It was submitted that the reasons were adequate when read fairly and as a whole. The Law 39. The assessment of whether a dismissal is fair or unfair is to be determined by the application of section 98(4) ERA 1996. Those well known statutory provisions merit revisiting, in my judgement, time and again, even for the most experienced employment specialist. So far as relevant for the facts of this case they are: “98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b )that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— … (b)relates to the conduct of the employee, … (4)Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case.” 40. The task of the Tribunal applying these principles is not to assess whether or not it would have made the same assessment as the Respondent employer. Rather, the Tribunal must consider whether the decision to dismiss fell within the band of reasonable responses open to a reasonable employer. It must not substitute its own assessment of the circumstances. See Vaultex UK Ltd v Bialas [2024] EAT 19, at paragraph 19: “So, the tribunal should not find the dismissal to be unfair on the basis that it would have been a reasonable decision to impose a lesser sanction for the dismissal; that this is what some employers would have done; or that this is what the tribunal itself would have done. If the tribunal concludes that the dismissal was unfair because the tribunal itself would not have dismissed, then it commits the so-called substitution error of substituting its own view of the appropriate sanction for that of the employer, rather than taking a band of reasonable responses approach.” 41. On appeal, the Tribunal’s reasons must be read fairly and as a whole. It should not be subject to pernickety, punctilious, undue, criticism of one particular sentence, phrase or passage of the reasons. That said, where, on a fair evaluation, the Judgement and Reasons disclose an error of law or insufficiency of reasons, the appellate court should not strive to import them or rectify an apparent error. 42. When considering the question of whether substitution occurred, the distinction must be drawn between a permissible assessment of whether the employer’s decision was within the range of reasonable responses and an impermissible decision that dismissal was unfair because the Tribunal would have imposed a different sanction. That distinction can, sometimes, be difficult to draw. Where a Tribunal has correctly identified relevant legal principles, identified the issues of fact of law and set out conclusions in respect of them, doubt, if doubt exists about whether the Tribunal has strayed into a substitution mindset should, in my judgement, weigh in favour of upholding the Tribunal’s decision, so long as the appropriate balance identified in the preceding paragraph is respected. 43. In a dismissal where the reason for the dismissal is the potentially fair reason of conduct Tribunals should adopt the well established analysis set out in British Home Stores Ltd v Burchell [1980] ICR 303 but one worth repeating: “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities …. The test, and the test all the way through, is reasonableness.” 44. As recognised in Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111, the objective standard of the reasonable employer applies to the investigation and the process leading to the employer’s dismissal. 45. In Eastland Homes Partnership v Cunningham [2014] UKEAT/0272/13 the EAT held that HHJ Hands QC accepted the submission that, “when an Employment Tribunal is faced with a summary dismissal based on the employer’s contention that the employee has been guilty of gross misconduct, then somewhere in [the Burchell analysis] … there should be a recognition that the employer has characterised the conduct as gross misconduct and an analysis of whether that was a reasonable position for the employer to have adopted in the circumstances of the case. Unless that is recognised … , when one comes to the final stage of deciding whether the sanction of dismissal is within the band of reasonable responses of a reasonable employer, the Employment Tribunal is, in effect, going to be examining the conduct without the proper context.” He stated, in reference to the Burchell guidance that, “it must not be forgotten that this is guidance as to how to approach the statutory rubric of section 98(4).. By it, the fundamental task in any unfair dismissal case is that of deciding: “whether in the circumstances ... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.” The guidance is, no doubt, a helpful gloss on that statutory rubric, and has come to be regarded as a template for Employment Tribunals to follow. Nevertheless, in a case like the present, what [the Employment Judge] had to do was to decide whether it was reasonable or unreasonable to treat the misconduct as a sufficient reason for dismissing the employee.” (Emphasis added). At paragraph 47 of the Judgement Judge Hand stated, “it is perfectly true section 98(4) and the authorities do not refer to the need to identify gross misconduct, but a failure to characterise the misconduct in terms of the belief of the employer seems to be a fundamental error.” 46. In my judgement this passage identifies the importance, when considering the fairness of the dismissal, to focus not on the label attached to the “conduct” identified as a potentially fair reason (misconduct or gross misconduct). Rather, the tribunal must view the question of fairness by first determining whether the potentially fair reason of ‘conduct’ was the reason for the dismissal. If it is so established, the Tribunal should then consider the belief of the employer about that conduct before, ultimately, determining whether the dismissal came within the band of reasonable responses. As highlighted above in the earlier passage in Judge Hand’s decision, that question must be determined by considering whether in the circumstances ... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. Reasonableness is key. In my view, relevant circumstances to consider are likely to include the view the employer took about the seriousness of the conduct, relevant policies and, possibly, the consequences of the conduct and impact within the business, and the reasonableness of those views and the material upon which they were based. 47. Judge Hand’s decision in Eastlands has not been criticised in later EAT decisions, although it has been considered in other cases, notably, Hope v BMA [2021] EA 2021-000187. In that case Choudhury P held that it was not an error for a tribunal determining the fairness of a dismissal, and reaching a decision that it was fair, not to consider whether the conduct leading to the dismissal amounted to gross misconduct. This was because the conduct relied on in that case was not alleged to have been in breach of any express or implied contractual term. I agree with that decision: as set out further below, the relevant distinction between misconduct and gross misconduct (whether there has been a fundamental breach of contract) is pivotal in a contract claim, including a claim of wrongful dismissal. 48. The following passage from the judgement of Choudhury J in Hope is one with which I agree and, in my judgement, is particularly important to consider in this case: “26. Whether or not dismissal by reason of conduct is fair or unfair within the meaning of s.98(4) depends not on the label attached to or characterisation of the conduct as gross misconduct, but on whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. It is equally well established that the determination of that question involves, in a case where the reason for dismissal is said to be the employee’s misconduct, the following four-stage analysis, as pithily summarised by Langstaff J in JJ Food Service v Kefil [2013] IRLR 850: “8. In approaching what was a dismissal purportedly for misconduct, the Tribunal took the familiar four stage analysis. Thus it asked whether the employer had a genuine belief in the misconduct, secondly whether it had reached that belief on reasonable grounds, thirdly whether that was following a reasonable investigation and, fourthly whether the dismissal of the Claimant fell within the range of reasonable responses in the light of that misconduct.” 27. There is no requirement in that four-stage analysis to determine whether conduct amounts to “gross misconduct”, which involves a separate contractual concept. That was made clear by Langstaff J in West v Percy: “24. A gloss has been put upon the approach to section 98(4) by cases such as Burchell, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 and subsequent decisions so often and so regularly that it has become entirely appropriate for a Tribunal to direct itself by reference to the four-stage test there involved. By contrast, gross misconduct is a contractual concept. Where there is misconduct, an employee may be dismissed, and he may be dismissed either with or without notice: but if without notice, there is likely to be an issue as to whether the misconduct is or is not gross. That is a contractual, not statutory, issue upon which the payment of the sum otherwise due during a notice period would depend if an action for wrongful dismissal were to be brought (no such action was brought in the present case). Whether there has been gross misconduct is a finding of fact dependent upon what actually happened. By contrast, a decision in respect of section 98 depends not upon what happened but upon asking what the employer thought had happened, which is a different enquiry. 25. The absence of a proper consideration whether misconduct is or is not gross may entitle an employee who is about to be subject to disciplinary proceedings to obtain an injunction to restrain them (see the case of West London Mental Health NHS Trust v Chhabra [2014] ICR 194 SC ). … 26. It may be more usual that a dismissal is held fair where there is something that might be described as gross misconduct contractually, and as such within the terms of the employer's disciplinary procedure (especially if that is contractual) it would be held unfair. It may be unusual that a dismissal is held unfair where there is no gross misconduct. But in neither case is the presence or absence of gross misconduct, as such, determinative. Gross misconduct is, rather, a label that is applied by the courts in determining contractual issues, and though it may be a trigger for other actions, to proceed to determine a claim under section 98(4) by asking whether the label is appropriate or not is to take a completely unnecessary step. The question is whether what the employer thought had happened, in the circumstances in which the employer thought the conduct to have occurred, was or was not sufficient to justify the employer's actions so as to be held not unfair within section 98(4) .” 28. I respectfully agree with that analysis.” (My emphasis added to the quote from West v Percy.) 49. In conclusion, in my judgement, when carrying out an assessment of whether a dismissal for conduct is fair or not, the Tribunal is required to consider ‘the circumstances’ when assessing whether the employer acted reasonably or not in treating the conduct as a sufficient reason for dismissing an employee. I consider that the employer’s subjective views as to the severity and consequences of dismissal form part of the relevant circumstances which fall to be considered, and to be considered through the lens of reasonableness. 50. However, the position in a claim for wrongful dismissal is different and requires a very different approach. Whereas the question of whether a dismissal is fair or not requires a Tribunal to step back and ask whether the decision to dismiss fell within a range of reasonable responses, its task in a claim of wrongful dismissal is different. It is to determine whether a repudiatory breach of contract, such as an act of gross misconduct, occurred. The employer’s reasonable belief is not determinative. Nor is the description of conduct as gross misconduct in a disciplinary policy, or the employee’s acceptance of that description, conclusive of its legal character. 51. In Adesokan v Sainsbury’s Supermarkets Ltd. [2017] EWCA Civ. 22, Elias LJ stated that the question of whether the misconduct falls within the category of gross misconduct warranting summary dismissal involves an evaluation of the primary facts (in other words, the established or agreed facts as to what actually happened per Langstaff J in Ward v Percy, at paragraph 24, cited above) and an exercise of judgement (whether what actually happened amounted to a fundamental/ repudiatory breach of contract). He quoted with approval the following passage from Lord Jauncey’s judgement in Neary v Dean of Westminster [1999] IRLR 288: “Whether misconduct justifies summary dismissal of a servant is a question of fact. In Clouston and Co. Ltd v Corry [1906] AC 122, which concerned summary dismissal for drunkenness, Lord James of Hereford delivering the judgement of the Board said at p. 129:- ‘Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.’ His Lordship went on to observe that ‘the question of whether the misconduct proved establishes the right to dismiss the servant must depend upon facts - and is a question of fact.’” 52. The evaluation stage is key, and, as set out in the quote above, there is no fixed rule of law defining the degree of misconduct which will justify dismissal. In Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 it was held that the question to ask was whether the conduct showed disregard of the essential conditions of the contract of service. That is resonant of the quotation above: [mis]conduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal. 53. The authorities are clear that in assessing whether a fundamental breach of contract occurred, a ‘contractual approach’ must be taken. In Wadham Stronger Commercials (London) v Brown [1983] IRLR 43 the Court of Appeal unanimously held that when considering whether a fundamental breach had occurred, albeit in the context of a claim of constructive dismissal, “neither the circumstances inducing the fundamental breach by the employer, nor the circumstances which led the employee to accept such repudiation” were relevant as a matter of contract. This, in my judgement, is also reflected by an example given by Sedley LJ in Bournemouth University Higher Education Corp. v Buckland [2010] ICR 908: “28. It is nevertheless arguable, I would accept, that reasonableness is one of the tools in the employment tribunals factual analysis kit for deciding whether there has been a fundamental breach. There are likely to be cases in which it is useful. But it cannot be a legal requirement. Take the simplest and commonest of fundamental breaches on an employer part, a failure to pay wages. If the failure is due, as it not infrequently is, to a major customer defaulting on payment, not paying the states wages is arguably the most, indeed the only, reasonable response to the situation. But to hold that it is not a fundamental breach would drive a coach and four through the law of contract, of which this aspect of employment law is an integral part. 29. Where, if at all, the reasonableness of the employer’s conduct may enter the picture is through the statutory additions to the law of contract. Assuming, in other words, that there can be conduct which is both reasonable and a fundamental breach of contract, a constructive dismissal claim would be impossible to decide unless stage (1) was tested objectively on ordinary principles and reasonableness deferred to stage (4).” (Emphasis added) Stages (1) and (4) referred to in paragraph 29 in the extract above appear to refer to the following passage in the EAT’s judgement in Buckland, cited at paragraph 22 of the Court of Appeal’s decision and the assessment of whether a constructive dismissal could nonetheless be a fair one. “In summary, we commend a return to settled authority, based on the following propositions. (1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied. (2) If, applying the Western Excavating (ECC) Ltd v Sharp [1978] ICR 221principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed. (3) It is open to the employer to show that such dismissal was for a potentially fair reason. (4) If he does so, it will then be for the employment tribunal to decide whether dismissal for that reason, both substantively and procedurally (see J Sainsbury plc v Hitt [2003] ICR 111), fell within the range of reasonable responses and was fair.” 53. I do not consider that Buckland is authority for the proposition that reasonableness should be imported into an assessment of whether a fundamental breach had occurred. In addition, it would, in my judgement, be wholly unsatisfactory if different principles were apply to the question of whether a fundamental breach of contract had occurred in different employment contexts (for example, a claim for wrongful dismissal or a claim for constructive dismissal). 54. I accept that, in the context of a claim of constructive dismissal, reasonableness may be, legitimately, considered when considering whether a constructive dismissal was unfair. This, in my judgment, is the point made in Buckland. In determining whether a repudiatory breach has occurred the test is objective as set out above, and reasonableness or mitigation is not relevant. 55. In this case, the Claimant accepted that circumstances which induce or lead a party to act in breach of contract are not relevant to the issue of whether a fundamental breach of contract has taken place. However, it was submitted that in this case the Judge did not err because, in considering whether the Claimant’s conduct amounted to a fundamental breach he was entitled to consider mitigating circumcises in the context of determining whether she was in breach of the implied term of mutual trust and confidence; had the Claimant engaged in conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence; and, whether she acted without reasonable and proper cause. 56. The definition of the implied term of trust and confidence is that the employer/ employee will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84. This definition was cited in XXX v YYY [2026] EAT 89. However, breach of the implied term of trust and confidence is not the only kind of fundamental breach of contract which can take place. A fundamental breach of contract may take place where an employee engages in conduct which is a breach of contract and it shows disregard of the essential conditions of service, or is gravely incompatible with the employment in which they were engaged, or inconsistent with continuing confidence between them. The following passage was cited by the EAT in XXX v YYY from Neary v Dean of Westminster [1999] IRLR 288. This, in my judgement, evidences that breach of implied term of trust and confidence is one, but not the only, form of fundamental breach which can be committed by an employee: “What degree of misconduct justifies summary dismissal? I have already referred to the statement by Lord James of Hereford in Clouston & Co Ltd v Corry. That case was applied in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698, where Lord Evershed MR, at p.700, said: 'It follows that the question must be – if summary dismissal is claimed to be justified – whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.' In Sinclair v Neighbour, Sellers LJ, at p.287F, said: 'The whole question is whether that conduct was of such a type that it was inconsistent, in a grave way – incompatible – with the employment in which he had been engaged as a manager.' Sachs LJ referred to the 'well established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them'. In Lewis v Motorworld Garages Ltd [1985] IRLR 465, Glidewell LJ, at 469, 38, stated the question as whether the conduct of the employer 'constituted a breach of the implied obligation of trust and confidence of sufficient gravity to justify the employee in leaving his employment ... and claiming that he had been dismissed.' This test could equally be applied to a breach by an employee. There are no doubt many other cases which could be cited on the matter, but the above four cases demonstrate clearly that conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.” 57. I accept that when determining whether a breach of the implied term of trust and confidence has taken place, the reasons for the relevant conduct and its surrounding circumstances may bear upon whether the conduct was calculated or likely to destroy or seriously damage the relationship and, whether there was reasonable and proper cause for it. If established, a breach of the implied term of trust and confidence will, by definition, be fundamental. Those propositions however do not alter the well-established rules of contract that the assessment of whether a fundamental breach of contract has occurred and the question to be determined is whether the misconduct justifying dismissal so undermines the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment and may therefore dismiss her or him summarily. 58. Pursuant to s.123(6) of the ERA 1996, where a tribunal finds that the dismissal was, to any extent, caused or contributed to by any action of the complainant, it must reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. The parties relied upon Topps Tiles plc v Hardy [2023] EAT 56 and Renewi UK Services Ltd v Pamment [2021] 2021-000584DA. The reasons must explain, not only the finding of contribution, but also the Tribunal’s assessment of the appropriate reduction. Whether the reasons were sufficient must be considered by reading the remedy judgement fairly and together with the liability reasons. 59. It is well established that parties must put their cases to witnesses. See, for example Jacob LJ in Markem Corp. v. Zipher Ltd. [2005] EWCA 267 at para. 59 (quoting the Australian case of Allied Pastoral Holdings v Fed. Commission of Taxation (1983) 4 ALR 607): “… it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.” (underlining added) Discussion and Conclusions 60. I have taken Grounds 5 and 4 together. 61. The Judge’s Judgment and Reasons are clearly set out, detailed and well written. The Judge correctly set out relevant principles of law and warned himself against substitution. The Judge made factual determinations which were not in favour of the Respondent regarding some of the Respondent’s investigation and these were relevant to the question of the reasonableness of the dismissal. These are important points which I have considered carefully. I have started from the position that, in those circumstances, the benefit of doubt should be in favour of the Tribunal Judgment. 62. At some points in the Judgment, the language used by the Judge, in my judgement, tends to stray into territory which might suggest a substitution mindset as contended by the Respondent. In particular, at paragraph 91 the Judge stated “I then considered whether dismissal was a fair sanction”. Arguably, that suggested that the Judge himself was considering the fairness of the dismissal, notwithstanding his immediate self direction against substitution. In his conclusion at paragraph 94, he stated “I take that fair policy as a starting point, and consider all of the overwhelming mitigating factors in this case which where were known to Mrs Reilly (and then Mrs Billings), and conclude that no reasonable employer would impose dismissal as a sanction for the misconduct in this case.” 63. At other parts of the Reasons, I consider that the Judge did not accurately record the discretion afforded to decision makers within the Respondent’s policy in respect of sanction. He stated in paragraph 91 that “there are criteria for when [a final written warning or dismissal] is appropriate”; “ in determining sanction under the policy, dismissal is appropriate only in the most severe cases.” In paragraph 92 (cited below) he stated that the mitigation was such that the policy ‘mandated’ a final written warning. He did not caveat any of that analysis by reference to the fact that the policy expressly stated that it was intended to provide ‘guidance’ on ‘possible’ outcomes as set out in the highlighted passages in its paragraphs 10 and 11. 64. Further, at several points the Reasons suggest that the Judge considered what the decision makers ‘could have’ or ‘should have’ believed, rather than whether their belief was genuine and based on reasonable grounds. At paragraph 92 the Judge stated, “Based on the material of which they were aware at the time, neither Mrs Reilly nor Mrs Billings can have believed that this case was one of the most severe cases … “severe cases, as they knew, mean cases where there has been something to make the situation worse than this. They knew that because they accepted the motive of the Claimant was benign and there was no gain or loss caused to anyone… Mrs Reilly and Mrs Billings each had all the knowledge necessary for this to fall into the category where their policy mandated that a final written warning would be given.” In fact, the Respondent’s policy did not ‘mandate’ a final written warning. It left the decision as to sanction up to decision makers, but directed them to documents, and stated expressly that the “penalties mentioned here are for guidance only” and the outcomes described as being ‘possible’ ones. 65. I considered carefully whether paragraph 92 can be fairly read as the Judge concluding that the belief of the decision makers about the relevant conduct was not genuine or not based on reasonable grounds. That sat a little uneasily however, with paragraph 93-4 where the Judge sets out his conclusion in another way which was that the decision makers considered first, whether trust had broken down and then, considered mitigation which was an incorrect application of the Respondent’s policy. That appeared to be a criticism of the procedure and application of the policy rather than the Judge explaining that he did not accept that the decision makers genuinely believed the Claimant had committed misconduct or had reasonable grounds to do so. More significantly, however, at paragraph 88 the Judge had expressly stated that both decision makers, Mrs Reilly and Mrs Billings, “genuinely and honestly believed that the Claimant had committed misconduct. They had reasonable grounds for that belief because the misconduct was admitted”. In paragraph 89 he concluded that the investigation was thorough “no stone left unturned” and that an opportunity was given to provide mitigation. He stated “the problem, as I turn to in due course, was what was then done with the information that the Respondent gathered.” 66. Further, the Judge did not, at any stage of his analysis, identify the question of whether it was reasonable for the decision makers to conclude that the Claimant’s admitted misconduct was serious and had led to trust breaking down. Reasonableness of the decision maker’s belief was key to an assessment of fairness. It was, in my judgement, important that this particular issue was addressed’ not least because of the passage cited in paragraph 88 above: namely, the Judge’s conclusion that the decision makers genuinely and honestly believed the Claimant had committed misconduct and that that belief was based on reasonable grounds following a reasonable investigation. These conclusions answered all four stages of the Burchell guidance in the Respondent’s favour. 67. The Judge’s analysis about mitigation, as set out above, appeared to have been prefaced on what the decision makers could, or should have concluded about the mitigation, and, an inaccurate reflection of the Respondent’s policy. Paragraph 108 states that the Respondent’s decision makers, “did not act reasonably in treating the admitted misconduct as a sufficient reason for dismissing the Claimant, and in particular, in treating the Claimant’s actions as gross misconduct.” This passage however falls within an analysis of the claim for wrongful dismissal where the Judge required to adopt a different analysis to that required in an assessment of fairness of the dismissal. Reading the Reasons as a whole, I am not satisfied that the conclusion in paragraph 108 was reached by the Judge applying the legal principles relevant to s.98(4) of the ERA 1996, rather than those he referred to in paragraph 105 regarding wrongful dismissal. The distinction between the different legal principles and the Tribunal’s role in applying them became blurred, in my judgement. 68. I consider that read fairly and as a whole, the Judge, despite his careful self-direction, fell into a substitution mindset. He identified the correct principles of law to apply when considering the fairness of a dismissal for the potentially fair reason of conduct at paragraph 75. He answered each of the established Burchell questions in the Respondent’s favour. It was at the next step, in my judgement, that the error occurred: he formed his own view about the mitigating circumstances, took the Respondent’s policy as mandating a particular outcome, determined in his own mind what the decision makers could or should have concluded in those circumstances, which was that the fair and appropriate outcome was a final written warning, and then determined that for that reason, no reasonable employer would have imposed dismissal as a sanction for the misconduct in this case. Significantly, however, the reasoning reveals that this was because of the Judge’s own view about the key building blocks leading to the decision. 69. I take Grounds 8 and 9 together. Grounds 8 and 9 concern the Judge’s conclusion that the Claimant’s conduct did not amount to gross misconduct. Although Ground 8 is framed as a perversity appeal, as submitted orally, this ground also raises issues of fairness in the hearing process: one of the primary criticisms made within it is that the issue of whether the Claimant’s conduct amounted to gross misconduct was not raised until after the close of evidence, and no opportunity was given for the Respondent’s witnesses to respond to a suggestion that the conduct, while misconduct, did not amount to gross misconduct. That in my judgement was far from ideal: the Respondent’s witnesses were entitled to explain why they considered that the conduct amounted to gross misconduct. 70. Whilst in an assessment of whether a dismissal is fair or not, a Tribunal cannot substitute its own view, the position is different when considering whether the employee was in fundamental breach of contract, thereby entitling the employer to terminate the contract of employment without notice. The assessment of whether the impugned conduct amounted to a fundamental/repudiatory breach requires an objective assessment of what the employee did. The Tribunal is able to reach its own conclusion about whether the conduct fell into that category. The Judge, in my judgement, recognised this in paragraph 105 of the Reasons: neither the policy nor the Claimant’s view were conclusive. 71. Conduct which amounts to a fundamental breach of contract may arise in different circumstances. In this case the issue was whether accessing the information on multiple occasions, in breach of the Respondent’s policy was a fundamental breach of contract, an act of gross misconduct entitling the Respondent to terminate the contract of employment without notice because the conduct led to a breakdown of trust. 72. It is not clear from the decision or the list of issues that the case had been advanced on the basis that the Claimant was in breach of the implied term of mutual trust and confidence which will, by definition be a fundamental breach of contract. Rather, it appears that the case was that the breach which took place, was a breach of the Respondent’s Acceptable Use Policy. The case which was put to the Claimant during evidence was that her second and subsequent accessing of her son’s account were acts of gross misconduct (applying the terms of the Respondent’s policy) and that because she had accessed the account on several occasions thereafter, she had committed five separate acts of gross misconduct over a period of two weeks. In evidence, the Claimant accepted that she had done so. (See the transcript of the Claimant’s oral evidence at page 23 of the Supplementary Bundle). Mrs Reilly considered that trust had been lost because of the Claimant’s actions/conduct. 73. However, the Judge considered the question of whether the Claimant’s conduct amounted to gross misconduct and a fundamental breach of contract by considering whether it amounted to a breach of the implied term of mutual trust and confidence. More significantly, within the judge’s own analysis of whether the actual conduct complained of amounted to gross misconduct he included reference to mitigating factors. Those factors did not alter the facts of the conduct, albeit they could be relevant to sanction. Further, as set out above, it appears at paragraph 108 that the Judge may have confused the objective assessment of whether a repudiatory breach of contract had occurred with the assessment of fairness. Nowhere in the Reasons does the Judge objectively set out whether the conduct, viewed objectively, amounted to gross misconduct. Instead, the Judge concluded that the conduct, taken with mitigation, did not do so. That, in my judgement, was an error. 74. I deal with the appeal in respect of the reasons provided for a reduction for contributory fault by 20% more shortly. The Judge explained why he considered that the Claimant had engaged in culpable and blameworthy conduct and that a reduction to compensation should be made. He simply did not, however, in my judgement, explain how he had reached the proportion that the reduction should be made at: why 20% rather than any other figure. 75. For all these reasons I allow the appeal on all grounds. 76. The parties are directed to provide short further written submissions on disposal, to be lodged with the EAT within 21 days of the handing down of this decision.