As long as the employer did not change the facts upon which he relied at the date of dismissal, it was open to him to change the label he attached to the reasons for the dismissal where that led to no procedural or evidential disadvantage to the other side: ‘The position, according to authority, appears to be as follows. In satisfying the Industrial Tribunal as to the reason for the dismissal under s.57(1) of the 1978 Act, the employer is not tied to the label he happens to put upon the particular facts relied on. Thus he may say ‘I made the employee redundant’. But he will not be prevented from saying later ‘No I have changed my mind. It was really a case of incapability.’ Nor will he be prevented from running the two as alternatives: either redundancy or lack of capability. By the same token, the Industrial Tribunal may (it appears) of its own motion declare that the reasons relied upon by the employer was not the real reason; for the real reason may be something that he shrank from mentioning, either through ignorance of the technicalities involved or perhaps through sheer kindness of heart or natural delicacy. In the same way, some other substantial reason under section 57(1)(b) may be advanced by the employer or found by the Tribunal to be the real reason for dismissal, differing from the sole or principal reason, such as redundancy or incapability, that my have been advanced by the employer himself.
That appears to us to the effect of the decisions of the Court of Appeal in Abernethy v Mott, Hay and Anderson [1974] IRLR 213 and of this Appeal Tribunal in Gorman v London Computer Training Centre [1978] IRLR 22. What the employer may not do, however, is to change after the date of dismissal the facts upon which he relied at the time as the basis for dismissal. That is made plain by the decision of the Court of Appeal in Monie v Coral Racing Ltd [1980] IRLR 464.
Finally, even in those cases where what is referred to in the authorities as no more than a change of label is involved – in the cases we have mentioned, for example, where lack of capability is treated as an alternative label for redundancy – great care must always be taken to ensure that the employee is not placed, as a result of the change in the label given to the reason for his dismissal, at a procedural or evidential disadvantage. That is made plain by the decision of the Appeal Tribunal in Murphy v Epsom College [1983] IRLR 395.’
Allegations of dishonesty and/or deliberate misconduct must be squarely raised and put: ‘We are very well aware that the proceedings before an Industrial Tribunal are informal – and long may they remain so. That was the Parliamentary intention. But, when once dishonesty is introduced into a case, the relevant allegation has to be put with sufficient formality and at an early enough stage to provide a full opportunity for answer. One of the hazards of the Tribunal system, and part of the price necessarily paid for informality, is that misadventures are bound to occur from time to time, as result of which that necessary formality of expression and that opportunity of answering are denied.’
Judges:
Waite J
Citations:
[1984] IRLR 422
Citing:
Cited – Abernethy v Mott Hay and Anderson CA 1974
Lord Cairns said: ‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, . .
Cited – Gorman v London Computer Training Centre EAT 1978
It was not necessary for an employer to ‘plead’ some other substantial reason in the full technical sense of the word to defend an allegation of unfair dismissal. . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 06 May 2022; Ref: scu.470360
