EAT UNFAIR DISMISSAL
Reasonableness of dismissal
S.98A(2) ERA
It can only rarely be the case that it would be outside the range of reasonable responses for an employer to proceed with a disciplinary process before holding a grievance appeal, at least in the absence of some clear evidence of unfairness or uncompensatable prejudice to the employee.
The ET fell into error in holding that the Respondents had acted outside the band of reasonable responses in proceeding with a disciplinary hearing before the hearing of an appeal by the employees from the rejection of their grievance, where the grievance related to the subject matter of the disciplinary hearing. The employees had refused to comply with an instruction from the employers for over 3 months and could have raised any justification for the refusal to comply with the instruction at the disciplinary hearing. The ET had substituted its views for those of the Respondent as to what was reasonable.
The ET also conflated issues of contribution with a Polkey reduction, wrongly took account of matters not known to the Respondent at the time of the dismissal in assessing contribution, and conflated contribution to the dismissal with contribution to the fairness of the disciplinary process.
The ET’s finding of 10 per cent contribution on the part of the Claimants was in any event unreasonable.
Serota QC J
[2010] UKEAT 0488 – 09 – 3103
Bailii
Employment Rights Act 1988 98A(2)
England and Wales
Employment
Updated: 10 November 2021; Ref: scu.408517