EMPLOYMENT TRIBUNALS : ERROR OF LAW : FAIR REASONS : JUDGMENTS AND ORDERS : THIRD PARTIES : UNFAIR DISMISSAL : DISMISSAL PROCURED BY THIRD PARTY : NEED FOR TRIBUNAL’S EXPRESS REFERENCE TO INJUSTICE TO EMPLOYEE : s.98 EMPLOYMENT RIGHTS ACT 1996
Although it was good practice for a tribunal to expressly refer to the injustice caused to an employee dismissed because of pressure from a client, it need not be fatal if that was not done provided it was clear that the injustice had been fully taken into account.
The appellant former employee (H) appealed against a tribunal’s decision dismissing his claim of unfair dismissal. The respondent employer (C) was a charity which provided transport services to community groups. It had employed H for four years as a minibus driver taking disabled children to school. The service was provided under a contract between C and a local authority, which provided that the local authority could veto the employment of particular individuals. On the local authority providing C with information alleging that H had been involved in the sexual abuse of his two young nieces, C questioned H who denied the allegations, stating that they had been investigated by the police who had decided not to prosecute and that they related to a period several years earlier. The local authority then convened a meeting, which C but not H was allowed to attend, where it was agreed that abuse had taken place and H could no longer work with children. C then suspended H, but continued to make representations to the local authority on H’s behalf. H requested that C provide him with alternate work in the meantime. However, the only work available required a licence which H had failed on two attempts to obtain. C then decided it had to dismiss H. On H’s claim of unfair dismissal the tribunal concluded that it was reasonable for C to have dismissed H because of third party pressure. Further, that C had done all it could reasonably be expected to do to assist H and prevent him from losing his employment. H argued that Dobie v Burns International Security Services (UK) Ltd (1985) 1 WLR 43 CA (Civ Div) and Greenwood v Whiteghyll Plastics Ltd Unreported August 6, 2007 EAT established that in cases involving a client procuring the dismissal of an employee the tribunal had to explicitly refer to and expressly include in the balance, the injustice to the employee and that in failing to do so, the tribunal in the instant case had erred in law.
HELD: The fact that a client, who procured directly or indirectly the dismissal of an employee, may have acted unfairly, and that the employee suffered an injustice did not mean that the dismissal was unfair. The Employment Rights Act 1996 s.98 focused on the question of whether it was reasonable for the employer to dismiss. If the employer had done everything it reasonably could to avoid or mitigate the injustice brought about by the client’s stance, but had failed, any eventual dismissal would be fair. The outcome may remain unjust, but that was not the result of any unreasonableness on the employer’s part, Scott Packing & Warehousing Co v Paterson (1978) IRLR 166 EAT and Grootcon (UK) v Keld (1984) IRLR 302 EAT applied. Although it was good practice for a tribunal to explicitly direct itself by reference to Dobie, a failure to make an express reference to the injustice element need not be fatal, Dobie and Greenwood applied. Often it was clear that the tribunal had taken the injustice to the employee fully into account. In many cases, including this one that would be at the heart of the case and could not realistically be overlooked. The tribunal was conscious that H was being dismissed because of concerns based on allegations of misconduct which he had had no chance to rebut and for which he had never been charged: it referred explicitly to the representations to that effect made on H’s behalf. However, it found that C had done all it could reasonably be expected to do to assist H and prevent him from losing his employment. That conclusion addressed the correct question and was an answer which was open to it on the facts, if not inevitable. The fact that the tribunal had not considered whether C could have retained H in employment whilst he made a third attempt to obtain the required licence where no such suggestion had been made at the the time, was no evidence that it had applied an insufficiently rigorous test.
K HENDERSON v CONNECT (SOUTH TYNESIDE) LTD (2009)
EAT (Underhill J (President), K Bilgan, R Chapman) 1/10/2009