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Employment: automatically unfair dismissal

AUTOMATICALLY UNFAIR DISMISSAL : COMPENSATORY AWARDS : DISMISSAL AND DISCIPLINARY PROCEDURES : POLKEY REDUCTIONS : UNFAIR DISMISSAL : STATUTORY PROCEDURE NOT COMPLETED : FAILURE TO DISCLOSE STATEMENTS BEFORE MEETING : REDUCTION IN RESPECT OF CONTRIBUTION : Sch.2 Pt 1 EMPLOYMENT ACT 2002 : s.98(4) EMPLOYMENT RIGHTS ACT 1996 : Pt X s.98A EMPLOYMENT RIGHTS ACT 1996 : s.123(6) EMPLOYMENT RIGHTS ACT 1996

An employment tribunal had been entitled to find that there had been a breach of step 2 of the dismissal and disciplinary procedure set out in the Employment Act 2002 Sch.2 Pt 1 when the two written accounts of complaints against the claimant were not shown to her before the step 2 meeting. However, it had erred when it failed to give reasons in response to a submission that the claimant had contributed to her dismissal.

The appellant employer (E) appealed against a decision of an employment tribunal that it had unfairly dismissed the respondent (S). S worked as a plain-clothes store detective. She was the subject of a complaint made by a customer’s daughter, and a report was made by the manager of the relevant store. E had material sufficient to satisfy step 1 of the three-stage dismissal and disciplinary procedure set out in the Employment Act 2002 Sch.2 Pt 1 and accordingly it called a meeting. The employment tribunal found that the complaint written by the customer’s daughter and the store manager’s report were not given to S in advance of the meeting. Nevertheless, S gave a detailed written response indicating that she knew the basis upon which she was to face disciplinary proceedings. The employment tribunal found that the decision to dismiss was reasonable within the Employment Rights Act 1996 s.98(4) since E had reasonably concluded during the disciplinary process that S had failed to apply the industry standard procedure where she considered that there had been shoplifting and she had not accepted that what she had done was wrong. However, the employment tribunal found that the failure to provide the two statements made the dismissal unfair under s.98 and s.98A of the 1996 Act because step 2 was not properly completed. Dealing with remedy, the employment tribunal concluded that S would have been dismissed in any event, albeit at a later date, if the proper process had been complied with, and that she was entitled to a basic award and a compensatory award limited to three weeks’ pay, and that it was “not appropriate to make any further deduction for contribution”. E submitted that (1) S knew enough for her to understand the case she had to meet and the employment tribunal erred in finding that step 2 was not complied with; (2) the employment tribunal failed to give reasons as to why it did not order contribution and it ought to have made a finding of 100 per cent contribution since S’s conduct alone was the reason for dismissal.

HELD: (1) Although S had known enough to be able to write an account, once it became clear that there were two statements against her she ought to have had the opportunity to prepare her account in the light of them. The instant case was distinguishable from Ingram v Bristol Street Parts Unreported April 23, 2007 EAT, where there was a failure to provide a whole sequence of invoices; in the instant case the only relevant materials were the statements of the customer’s daughter and the manager, Ingram distinguished. The employment tribunal was entitled, using its experience, to decide that that was a failing and, applying the law on which it was correctly directed, to decide that it was a breach of step 2 of the procedure (see para.21 of judgment). (2) It was an error by the employment tribunal to provide no further reasons on the issue of contribution. It should have said whether it accepted the case made by E that S had contributed to or caused her own dismissal. It was possible even in a procedural defect case for there to be contribution, Ingram applied. Just because the employment tribunal had limited the loss to three weeks did not mean that it was just and equitable to refuse to order contribution. Making a Polkey reduction and making a reduction for contribution were separate processes and s.123(6) of the 1996 Act inserted a mandatory consideration of contribution into the wide discretion to make a compensatory award. The issue of contribution was remitted to the same employment tribunal for reconsideration.

 “Lawtel” 12.9.2011