EAT Unfair Dismissal – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
VICTIMISATION DISCRIMINATION – Whistleblowing
VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Dismissal
PRACTICE AND PROCEDURE – Disposal of appeal including remission
The Employment Tribunal (‘the ET’) held that the Appellant was dismissed for four instances of misconduct, two of which were protected disclosures and that the Appellant’s dismissal was not unfair.
In deciding whether the reason for the Appellant’s dismissal was that he had made protected disclosures, the ET asked, not what the reason or principal reason for the dismissal was, but whether the dismissal was ‘grossly’ or ‘blatantly’ unfair. The Employment Appeal Tribunal (‘the EAT’) held that the ET had misdirected itself.
In deciding whether or not the dismissal was unfair the ET decided that the Respondent would have been entitled to dismiss the Appellant for the two incidents of misconduct which were not protected disclosures. The EAT held that the ET had misdirected itself, as the Respondent had dismissed the Appellant not for two incidents of misconduct, but for four, two of which were protected disclosures, on the basis of the decision of the House of Lords in Smith v Glasgow City District Council [1987] ICR 796. The ET should therefore have held that the Appellant’s dismissal was unfair.
The EAT would have remitted the case to the ET on this question, had it not also held that the ET misdirected itself on the question whether the dismissal was unfair.
Elisabeth Laing DBE J
[2016] UKEAT 0124 – 16 – 1410
Bailii
England and Wales
Employment
Updated: 24 January 2022; Ref: scu.570398