EAT Unfair Dismissal: Reasonableness of Dismissal – Contributory fault
Unfair dismissal – unfairness – section 98(4) Employment Rights Act 1996 (‘ERA’)
Unfair dismissal – contributory fault – section 123(6) ERA
The Claimant, who had worked in a team providing 24/7 care to the Respondent (a man in his mid-30s who has severe learning difficulties, physical disabilities and unpredictable epilepsy), was dismissed for some other substantial reason, namely an irretrievable breakdown in trust and confidence. The Respondent’s mother – a Court of Protection appointed Deputy for the Respondent, who manages his care – had received statements from other members of the care team raising concerns about the Claimant. The Claimant, however, contended these were fabricated and questioned whether the staff in question had colluded in making the statements. The Respondent’s mother obtained further, more detailed statements from two of the complainants but did not provide these to the Claimant. Considering the Claimant could no longer be trusted to work as part of the team providing the Respondent’s personal care, it was decided she should be dismissed on notice. Her subsequent appeal was dismissed.
The Claimant complained this was an unfair dismissal, and the ET agreed to the extent that the Respondent had failed to follow a fair procedure in not providing the supplemental statements to the Claimant for her response. That said, the Respondent had reasonable grounds for believing that trust and confidence had broken down and, had the statements been provided to the Claimant, her response would have made no difference to the Respondent’s view that she could not continue to work as part of the care team; addressing the unfairness of the procedure would have added an additional week to the process, and the Claimant’s compensatory award would therefore be limited to one week’s pay.
The Respondent appealed on two bases: (1) the ET should not have found the dismissal to have been unfair when the procedural failing it had identified would have made no difference to the decision, which was substantively fair; and (2) having found that the Claimant’s conduct – specifically in contending that other team members had colluded to fabricate statements against her – was potentially relevant to her dismissal, the ET ought to have considered reducing the compensatory award under section 123(6) ERA.
Held: allowing the appeal in part
The ET had not erred in finding that the flawed procedure had rendered the dismissal unfair; its approach was consistent with the House of Lords guidance in Polkey v A E Dayton Services Ltd [1998] 1 AC 344 HL and was not susceptible to challenge on appeal.
Having, however, found that the decision to dismiss the Claimant was founded upon the Respondent’s lack of trust in her – informed in part by her response to the statements from other members of staff – that potentially raised the question of contributory fault under section 123(6) ERA, and the ET was therefore obliged to consider this question, which it had failed to do (Swallow Security Services Ltd v Millicent UKEAT/0297/08 applied). This point would be remitted to the ET for reconsideration.
Judges:
Eady QC HHJ
Citations:
[2017] UKEAT 0324 – 16 – 1503
Links:
Jurisdiction:
England and Wales
Employment
Updated: 24 March 2022; Ref: scu.582068