EAT Unfair Dismissal: Reasonableness of Dismissal – Unfair dismissal – fairness of dismissal – Employment Rights Act 1996, section 98(4) – The Claimant, a maritime security officer, was dismissed for some other substantial reason, namely pressure for his removal for working for a specific client. The ET did not consider the Respondent – a protected cell company under Guernsey law – had acted unfairly in the circumstances and did not consider its failure to look for alternative work for the Claimant within other cells rendered the dismissal unfair given that there was no evidence of other employment opportunities and the Respondent would not generally look for alternatives in different cells. The Claimant appealed: (1) against the ET’s failure to find the lack of investigation of alternative employment in other cells of the Respondent unfair; alternatively, (2) against the ET’s approach to the question of fairness more generally. Having failed to enter a Respondent’s Answer or to respond to the EAT’s correspondence, the Respondent was debarred from participating in the appeal.
Held: allowing the appeal and remitting the case for hearing afresh by a different ET.
The ET’s conclusion on alternative employment was not dependent upon the Respondent’s argument as to the inability to look at other cells within the company but was founded upon its finding that there was no evidence of alternative work available at the time. That was a permissible finding and the appeal would not, therefore, be allowed on the issue of alternative employment.
As for the approach to the question of fairness more generally, however, whilst it was entitled to allow that the range of reasonable responses might have included a decision not to investigate further (either with the client or the Appellant himself), the ET needed to make a finding that this was, indeed, what the Respondent had determined, not what the ET itself considered to be the case (and see per Lord Bridge in Polkey v A E Dayton Services Ltd  ICR 142). Given that the Respondent had in fact told the Appellant that it would investigate matters further, it was hard to see how the ET could have come to the conclusion that it did. In the circumstances, the decision was unsafe; the appeal would be allowed and the matter remitted to a freshly constituted ET for re-hearing.
Updated: 25 January 2022; Ref: scu.571426