Selvarajan v Wilmot and others: CA 23 Jul 2008

The appellant had employed the three claimants in his medical surgery, but they claimed automatic unfair dismissal when the practice closed on his suspension from practice and the statutory procedures were followed but not to the procedural standard, alleging unreasonable delay in the appeals.
Held: The employer’s appeal succeeded. The employees’ appeals failed. There was a distinction between non-completion of a procedure and non-compliance with it and the delay in completing the procedure did not mean the procedure was incomplete, thus rendering the dismissal automatically unfair.
Mummery LJ said: ‘neither the 2002 Act nor the Regulations have an impact on this case. The interpretation provision in Regulation 2 simply makes it clear that non-commencement of a procedure is included within expression ‘non-completion.’ In dealing with failure to comply with the statutory procedures, however, Regulation 12 clearly proceeds on the assumption that the statutory procedure has not been completed. It then directs that the non-completion of the procedure is to be attributed to the party, who has failed to comply with a requirement, including a general requirement in Part 3 of Schedule 2 : for example, the person guilty of delay. Regulation 12 can have no application to a case like this where there has been completion of the procedure. ‘ As to the employee’s appeal against the finding that they had claimed for overtime they had not worked: ‘It is still sometimes thought that the ETs determine the guilt or innocence of employees accused of misconduct. That is not the case. The ET is not a court in which the issue of misconduct is tried to determine whether the person dismissed for misconduct did or did not do what was alleged. The issue for the ET is whether the dismissal was unfair. That depends on the belief of the employer that there was misconduct, on his having reasonable grounds for that belief at the time of dismissal, on the reasonableness of his investigation and other factors.’

Judges:

Mummery LJ

Citations:

[2008] EWCA Civ 862, [2008] IRLR 824, [2008] ICR 1236

Links:

Bailii

Statutes:

Employment Rights Act 1996 94 98A, Employment Act 2002

Jurisdiction:

England and Wales

Citing:

CitedKhan and Another v The Home Office EAT 17-Nov-2006
EAT This complex appeal raised issues in 10 jurisdictions. Primarily the Claimants, who won unfair dismissal and sex discrimination and race discrimination claims, contended that their dismissals were tainted by . .
CitedYorkshire Housing Ltd v Swanson EAT 12-Jun-2008
EAT Statutory Discipline and Grievance Procedures
Whether the Claimant was automatically unfairly dismissed under section 98A ERA because the Respondents failed to comply with the general requirement not to . .
CitedThe Home Office v Khan and others EAT 14-Feb-2008
EAT Unfair Dismissal – Reinstatement/re-engagement
Practice and Procedure – 2002 Act (‘uplift’)
Race Discrimination – Other losses (compensation for loss of earnings)
Appeal against order for . .
CitedSovereign Business Integration Plc v Trybus EAT 15-Jun-2007
. .
Appeal fromWilmot and others v Selvarajan EAT 12-Oct-2007
EAT Unfair Dismissal – Reasonableness of dismissal / Automatically unfair reasons
Disability Discrimination – Reasonable adjustments
Race discrimination – Victimisation
Ordinary unfair dismissal . .

Cited by:

CitedStockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
CitedHamilton v Lisburn City Council NIIT 1-May-2009
. .
CitedGerstenkorn v Belfast Health and Social Services NIIT 13-Oct-2008
. .
CitedPunch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 18 July 2022; Ref: scu.271027