Lord Johnston considered the approach to be taken under section 98A: ‘In seeking to resolve this matter, it is necessary to make two observations of a general nature. In the first place, when an industrial tribunal is addressing the question in the context of remedy, against a background of procedural unfairness, whether a fair procedure if it had been adopted would have achieved the same result, ie dismissal, the tribunal is always addressing itself to a hypothetical question since dismissal has in fact occurred. The role of the tribunal in this narrow context does not bear upon its general role to determine the reasonableness of dismissal, where it has been frequently said that the tribunal should not conduct what amounts to an independent investigation and reach its own conclusions. In this context, it must conduct an investigation by acceptable evidence to achieve an answer to the hypothetical question, and the only decision can be that of its own. Secondly, it is necessary in addressing this issue, assuming the tribunal determines that the evidence at least supports the position that dismissal would have occurred in any event, that the tribunal thereafter address that question as a matter of probability, to be assessed in percentage terms. In many cases, failure to address the secondary question of assessment of probable risk will render a tribunal’s approach flawed. However, if it does make an assessment upon the evidence, that is a question of fact which would rarely be interfered with by this tribunal.’
Judges:
Lord Johnston
Citations:
[1997] IRLR 568
Statutes:
Employment Rights Act 1996 98A(2)
Jurisdiction:
England and Wales
Cited by:
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 25 November 2022; Ref: scu.421330