Unfair Dismissal — Constructive Dismissal – Reason for Dismissal Including Some Other Substantial Reason
The ET upheld the Claimant’s complaint of constructive unfair dismissal, finding that the Respondent’s conduct of an investigatory process into allegations of misconduct was such as to be likely to destroy or seriously damage the relationship of trust and confidence and amounted to a fundamental breach of the implied term. The Respondent appealed, arguing (1) the ET had erred in failing to specifically consider whether it had shown a potentially fair reason for the dismissal and whether that dismissal fell within the band of reasonable responses; and (2) the ET had transposed the fair hearing/natural justice requirements of a disciplinary hearing on to an investigation meeting.
Held: dismissing the appeal.
The Respondent was seeking to put its case on a basis that had not been pursued before the ET; the ET had clarified the points in issue at the outset of the hearing, which did not include an alternative case that any (constructive) dismissal was nevertheless fair. Although a finding of constructive dismissal did not necessitate a finding of unfairness, it remained for the Respondent to show the reason for that dismissal and that it was capable of being fair. The difficulties that might arise for an employer in this regard did not absolve a Respondent from the burden imposed by section 98(1) Employment Rights Act 1996 and did not require the ET to construct a reason on the Respondent’s behalf. In any event, on the ET’s findings of fact, the Respondent’s conduct of the investigation process – the conduct that had entitled the Claimant to terminate the contract of employment – had been so flawed that the Claimant could reach no other view than that the Respondent wanted to be rid of her; that did not establish any reason that was capable of being fair for section 98 purposes.
As for the second ground of appeal, although the way in which a disciplinary investigation is to be conducted will depend on the particular circumstances of the case, the ET had permissibly found that the Respondent had acted in such a way as to breach the implied term. No error of law was disclosed.
Citations:
[2019] UKEAT 0019 – 19 – 1107
Links:
Jurisdiction:
England and Wales
Employment
Updated: 06 September 2022; Ref: scu.643078