roberts_acumedEAT10
EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Claimant area sales manager was remunerated on a different basis from the other four area managers. His commission was based on total sales whereas theirs was based on annual increase in sales. On reviewing remuneration the Respondent considered that he should be paid on the same basis as his colleagues and that his remuneration did not reflect the substantial financial investment made by the Respondent in the business.
The Employment Tribunal did not misdirect themselves in law nor come to a perverse conclusion in deciding that a termination of the Claimant’s then current terms and offering new terms was a dismissal for some other substantial reason within the meaning of Employment Rights Act 1996 section 98(1)(b). Kent County Council v Gilham [1985] ICR 233 and Kerry Foods v Lynch [2005] IRLR 680 applied. Nor was the decision that the dismissal was fair within the meaning of section 98(4) perverse.
The Employment Tribunal erred in holding that Regulation 4(1)(a) of the now repealed Employment Act 2002 (Dispute Resolution) Regulations 2004 applied to the dismissal of the Claimant thus disapplying the Statutory Dismissal Procedure. The Employment Tribunal erred in holding that an employee with the same job functions and title as others was nonetheless to be regarded as being in a different category from them for the purpose of Regulation 4(1)(a). The Employment Tribunal further erred in that Regulation 4(1)(a) did not apply where there is only one employee in a particular category or of a particular description.
Accordingly the Employment Tribunal erred in failing to consider whether the Statutory Dismissal Procedure in Schedule 2 Employment Act 2002 had been complied with. The evidence relied upon by the Respondent to contend that it had been complied with was contained in the documents before the EAT. These were all steps taken after notice of dismissal had been served on the Claimant. Step 1 was to be taken when an employer is ‘contemplating dismissing’ the employee and Step 2 before ‘action is taken’. The Regulations provide a definition of ‘action’ as ‘any act or omission’. This must apply to the Employment Act 2002 pursuant to which the Regulations were made. Having regard to the meaning of the term and the purpose of the Statutory Dismissal Procedure, the EAT held that Steps 1 and 2 must take place before notice of dismissal is served. Smith Knight Fay v McCoy UKEAT/0245/08/DA and Fitness Solutions v Park UKEATS/0032/09/BI considered and distinguished. No Tribunal properly directing themselves could have concluded that Steps 1, 2 and 3 of the Statutory Dismissal Procedure had been complied with in time or at all. Accordingly the EAT substituted a decision that the dismissal of the Complainant was unfair by reason of the now repealed Employment Rights Act 1996 section 98A. Case remitted to the Employment Tribunal for determination of remedy.
Slade J
[2010] UKEAT 0466 – 09 – 2511
Bailii
Employment Rights Act 1996 98(1)(b), Employment Act 2002 (Dispute Resolution) Regulations 2004
Citing:
Cited – Kent County Council v Gilham CA 1985
If on the face of it the reason given by the employer could justify the dismissal, then it is a substantial reason and the tribunal’s enquiry should then move on to consider the fairness of the dismissal. Griffiths LJ said that at the stage of . .
Cited – Kerry Foods Ltd v Lynch EAT 20-May-2005
EAT Constructive Dismissal. Whether lawful termination of contract can give rise to breach of implied term of Tand C. Johnson v Unisys. SORS – alteration of Terms. Hurdle to be crossed by employer. . .
Distinguished – Smith Knight Fay Ltd v McCoy EAT 5-Mar-2009
EAT UNFAIR DISMISSAL
Procedural fairness/automatically unfair dismissal
S.98A(2) ERA
Polkey deduction
The employee was told at a meeting that he or his post would be made redundant at a . .
Distinguished – Fitness Solutions Scotland Ltd v Park EAT 13-Nov-2009
EAT Statutory dismissal procedure. Tribunal erred in finding that there had been a failure to follow the procedure where they had considered only whether or not it had been followed prior to the date of the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 02 November 2021; Ref: scu.426700