EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair Dismissal – Fairness of Dismissal – Section 98(4) Employment Rights Act 1996
The ET found that the reason for the Claimant’s dismissal was his conduct on 24 October 2012. The Respondent had initially decided the sanction for this should be a final written warning. The decision to dismiss was made only after the dismissing manager had learned that the Claimant had been issued with a first written warning subsequent to the 24 October 2012 events, albeit that the warning itself related to his conduct (in particular his continued refusal to accept reasonable management instruction) preceding that date. The ET concluded that the dismissal had been fair.
The questions raised by the appeal were as follows:
(1) Had the ET ignored relevant matters in reaching its decision, specifically: (i) that the warning post-dated the conduct relied on for the dismissal (‘the timing point’); (ii) that there was an outstanding appeal against the warning that remained unresolved (‘the appeal point’); (iii) and that the Claimant was not given a further opportunity to make representations on this course of action (‘the natural justice point’)?
(2) Had the ET taken account of irrelevant matters, specifically its conclusion that it was unlikely that the Claimant’s appeal against the warning would have been successful in any event?
The Respondent accepted the ET had erred in considering the likely outcome of the Claimant’s appeal against the warning (this was a matter that could go to remedy, not liability). It was not suggested, however, that this error undermined the ET’s conclusion on fairness.
On the timing point, following the decision of the EAT (Lady Stacey presiding) in the case of Sweeney (deceased) v Strathclyde Fire Board UKEATS/0029/13/JW, a warning could be relevant even if given after the date of the events directly leading to the dismissal. Specifically, in this case, it was the substance of the matters with which that warning was concerned that had weighed with the Respondent. The ET was entitled to conclude that taking it into account did not mean that the decision fell outside the range of reasonable responses in this case.
Whilst an extant appeal against a warning would be a relevant matter, in this case the dismissing manager had reasonably believed the appeal was no longer being pursued. In the circumstances, the ET was entitled to conclude that the failure to take account of the ongoing challenge to the warning did not render the dismissal unfair.
On the natural justice ground, this was not a case which gave rise to a breach of process and resulting unfairness due to the involvement of others (as had occurred in cases such as Ramphal v Department for Transport UKEAT/0352/14/DA). There was, however, a more general point of natural justice that arose. Although the Claimant had been told that sanction would be considered only after findings had been made on the disciplinary allegations, he was not then advised of the significance that the warning had assumed (a new factor for the dismissing manager) or given the opportunity to make representations on that point. The fact that he was thereafter afforded a right of appeal did not answer the question whether the decision to dismiss was rendered unfair by this breach of natural justice. The ET’s failure to engage with this question meant that its decision was unsafe and could not stand.
Having permitted the parties to make further representations on disposal, no basis was identified by the Respondent on which a finding of unfair dismissal could arise given the failure to afford the Claimant natural justice in this regard. In the circumstances (and having due regard to the guidance laid down in Jafri v Lincoln College  EWCA Civ 449), it was appropriate to substitute a finding of unfair dismissal. The parties were agreed that the mater should then be remitted to the same ET for consideration of remedy.
Updated: 19 January 2022; Ref: scu.566676