EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice manager that she should do so, but the Tribunal found that she did not raise this with any of the doctors.
The Tribunal found that there were various defects in the way in which the case was handled. However, it held that the employers had a genuine belief based on reasonable grounds that she had committed the alleged misconduct, and that even had the proper procedures been carried out, the likelihood was that the decision would have been the same. So, whilst not in terms referring to s.98A(2) of the Employment Rights Act 1996, they applied that section and concluded that the dismissal was fair. They further held that even if unfair, this was a case where there should be a 100% contribution with respect to both the basic and compensatory awards.
There are numerous grounds of appeal. The central ones are that the Tribunal misconstrued s.98A (2); it adopted the construction of the EAT in Alexander and Hatherley v Bridgen Enterprises UKEAT/0107/06 whereas it ought to have adopted the different construction suggested in Mason v The Governing Body of Ward End Primary School UKEAT/043305. Further, the Tribunal was not entitled to conclude that the dismissal would have occurred in any event; and the finding of 100% contributory fault was insufficiently reasoned and perverse.
The EAT, having considered both earlier decisions, adopted the construction in Alexander and Hatherley. It also concluded that the Tribunal was entitled on the evidence to conclude that dismissal would have occurred in any event. Accordingly, the finding that there was no unfair dismissal was upheld. Had it been material, the EAT would however have found that the Employment Tribunal erred in law in finding 100% contributory fault.
The concept of procedure in section 98A(2) is a broad one, intended to reverse the decision in Polkey and to re-instate British Labour Pump. Elias J P set out the background to the section: ‘Prior to the coming into force of this section, the House of Lords had established that if a dismissal was found to be unfair for procedural defects then the fact that the employer would have been dismissed in any event, even had he complied with all the proper procedures, would not generally render a dismissal fair. It could only do so in the very exceptional circumstances where a reasonable employer could dispense with all such procedural safeguards. The relevance of the fact that the employee might have been dismissed in any event went to the question of remedy and not liability: see Polkey v A E Dayton Services Limited [1987] IRLR 503 HL overruling the earlier Court of Appeal decision in British Labour Pump Co Ltd v Byrne [1979] ICR 347 IRLR 94.’
Judges:
The Honourable Mr Justice Elias (President)
Citations:
[2006] UKEAT 0105 – 06 – 1910, UKEAT/0105/06, [2007] IRLR 17, [2007] ICR 203
Links:
Statutes:
Employment Rights Act 1996 98A(2)
Citing:
Cited – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Mentioned – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Cited by:
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 08 July 2022; Ref: scu.245401
