EAT Unfair Dismissal – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity – UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
Though the Claimant’s complaint was that she had been unfairly dismissed because her employer had failed to consider disclosures she had made about the behaviour of a contractor, had rejected her grievance causing her to become ill, and had then dismissed her for the resultant incapability or for making a protected disclosure (all of which the Employment Tribunal rejected) and had expressly said she took no issue with the fairness of the procedure by which dismissal was effected, the Employment Tribunal proceeded nonetheless to consider the latter. It did not alert the Respondent to the points it ultimately decided rendered the dismissal unfair. There were three, none of which bore examination. First, the Employment Tribunal considered it was unfair to dismiss summarily in breach of contract, when if the employment had continued throughout the notice period the Claimant might have had the chance of alternative employment to her contracted job (to which she could not return for health reasons). This was contrary to established authority (starting with Treganowan v Knee) which is to the effect that the method of dismissal is irrelevant to the issue of fairness; and was inconsistent with the implicit finding when deciding that there should be a 100% Polkey reduction that there was no chance of obtaining any such alternative employment. Second, the Employment Tribunal concluded that the employer had ceased looking for suitable alternative employment 12 days prior to the dismissal, when there was no proper evidential basis for this finding, and the unchallenged evidence was that on the occasion of dismissal the dismissing officer was told that there was then no suitable alternative employment available. Third, the Employment Tribunal thought it unfair of the Respondent not to have asked Occupational Health to clarify whether a double negative in its last report, which read as such said the Claimant was suitable for her original job, was intended. However, not only had the Employment Tribunal not suggested to the dismissing officer (who had not noticed the double negative, and had assumed that the document said that the Claimant was unfit for her old job) that she ought to have read the document more carefully, but that is what, on any proper view in context of the report, it said. The Employment Tribunal had adopted a wholly artificial reading of the document in context when it was clearly stating that the Claimant was not fit, and she accepted she was unfit. Indeed, it was never asserted by the Claimant at the hearing that the decision was flawed because she was fit to do her original work. In any event, an employer was not absolutely bound by the views of an Occupational Health Practitioner anyway (see Gallop v Newport).
Further, on its face the finding as to Polkey left open no chance that the Claimant could return to work within a reasonable time, thereby suggesting that the Employment Tribunal’s view of the context was that the evidence did not suggest any prospect of this.
Since the decision was based on matters which the Claimant had not put into contention before the Employment Tribunal, there was no basis on which the case could be remitted for further consideration. A decision that the dismissal was not unfair was substituted.
Langstaff P J
[2015] UKEAT 0228 – 14 – 1505
Bailii
England and Wales
Citing:
Cited – Treganowan v Robert Knee and Co Ltd QBD 1975
Phillips J considered whether the term of notice of a dismissal may make it unfair: ‘In my judgment, a tribunal has to say to itself, ‘This man was dismissed in such- and-such circumstances. The reason was so-and-so. Have the employers satisfied us . .
Cited – Mensah v East Hertfordshire NHS Trust CA 10-Jun-1998
An industrial tribunal should be helpful to litigants to help establish clearly whether issues which had been raised on the papers were not being pursued. An employee claiming racial discrimination but not pursuing it at the tribunal was not allowed . .
Cited – Muschett v HM Prison Service CA 2-Feb-2010
The claimant had been employed through an employment agency to carry out work for the respondent. He appealed against dismissal of his appeal against a ruling that he was not a worker for the respondent under the 1996 Act. He said that the . .
Cited – Gallop v Newport City Council CA 11-Dec-2013
An employer was not absolutely bound by the views of an Occupational Health Practitioner. . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 03 January 2022; Ref: scu.550671