Onus of Establishing Reason for Dismissal
EAT Unfair Dismissal: Reason for Dismissal Including Substantial Other Reason – – Reasonableness of dismissal
CONTRACT OF EMPLOYMENT – Wrongful dismissal
Unfair dismissal – reason for dismissal – section 98(1) and (2) Employment Rights Act 1996 – burden of proof and evidential basis for decision – reasonableness of dismissal for reason found – perversity
Wrongful dismissal – perversity
Contrary to the Respondent’s primary case, the ET found it had been the Appellant’s employer (in circumstances in which the purpose of the contract of employment was to permit his secondment to a third party, RAFT) and had dismissed him. Finding for the Respondent on its alternative case, however, the ET concluded that the dismissal had been for a reason related to the Claimant’s conduct (his termination of the secondment with RAFT without prior consultation with the Respondent) and had been fair. It had further found that the Claimant’s action in terminating the secondment with RAFT without prior consultation with the Respondent had removed the purpose from his contract of employment and was inconsistent with an intention to be bound by that contract. In the circumstances, the Respondent had been entitled to summarily dismiss the Claimant and his wrongful dismissal claim failed.
The Claimant appealed on three bases: (1) the ET approached the issue of the reason for dismissal incorrectly for the purpose of section 98(1) ERA; and/or (2) there was no evidential basis for its conclusion; (3) its conclusions on unfair and wrongful dismissal were perverse.
Held: allowing the appeal in part
(1) The ET had not lost sight of the correct test under section 98(1); it had been entitled to find the Respondent had discharged the burden upon it in this regard. It had identified the relevant decision taker and reached a permissible finding as to the real reason for terminating the Claimant’s contract (Abernethy v Mott, Hay and Anderson [1974] IRLR 213 CA applied).
(2) Further, although the Respondent’s pleaded case on reason had been put in the alternative, there was adequate evidential basis for the ET’s conclusions in this respect.
(3) On the perversity challenge, the ET had reached permissible findings on the issue of reason and that this was a reason that was capable of justifying the dismissal of the Claimant in the circumstances of this case. The finding on procedural fairness had, however, disclosed a failure to properly apply the guidance laid down in Polkey v A E Dayton Services Ltd [1988] ICR 142 HL. There was no basis upon which the ET could find that the Respondent had concluded that some form of procedure could be dispensed with (as futile) in this case. Although that might be the ET’s view, the Respondent had not expressly turned its mind to the point as (as the ET found) its decision not to proceed with a hearing was informed by its desire not to act inconsistently with it stance on the question of the identity of the Claimant’s employer. The Respondent’s evidence before the ET was that it would have proceeded to hold a hearing with the Claimant, albeit it considered that the outcome would ultimately have remained the same. That being so, for section 98(4) purposes, the conclusion must be that the decision was unfair. Moreover, the ET had dismissed the relevance of the ACAS Code on Discipline and Grievance on the basis that the Code was relevant only to disciplinary proceedings; yet it had found that this was a dismissal for a reason relating to the Claimant’s conduct. The Claimant had discharged the high burden upon him to show that this was a perverse conclusion and the ET’s decision on the unfair dismissal claim would be set aside and a finding substituted that the Claimant had been unfairly dismissed.
Eady QC HHJ
[2016] UKEAT 0350 – 15 – 1409
Bailii
Employment Rights Act 1996 98
England and Wales
Employment
Updated: 31 October 2021; Ref: scu.570393