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28th June 2017

Fair Process and Failure to Provide Witness Evidence

In a recent case the Employment Appeal Tribunal (EAT) considered whether it was incorrect for a tribunal to find that an employee’s dismissal was fair when the employer had failed to call witness evidence of the appeal stage of the process followed at the hearing.

When considering whether a dismissal is unfair, once the employer has established a fair reason for dismissal, the tribunal will look at whether the employer acted reasonably in deciding to dismiss the employee for that reason. The test asks whether in all the circumstances, the employer acted reasonably in treating that reason as a sufficient reason for dismissal.

Case law has held that it is possible that defects in a procedure during the dismissal can be remedied during an appeal and also defects in an appeal procedure will not necessarily mean that the dismissal is unfair if a fair procedure had been followed up to that point.

In the case, the employee was employed as a maths teacher at a high school from 2002 until her dismissal for capability grounds in April 2015. The employee was taken through the school’s capability procedure due to the school’s poor performance in maths and also the poor exam results of the teacher’s class in particular. The employee failed to improve to the extent required by the school and she was therefore dismissed.

The employee appealed the dismissal and the appeal panel upheld the decision to dismiss. The school, however, provided no reason for doing so in their outcome letter.

The teacher brought a claim for unfair dismissal. No member of the panel which heard the appeal gave evidence at the hearing. The tribunal found that the employee had been sufficiently supported or encouraged as part of the capability procedure and the school had grounds for concluding that she had failed to reach the standard required. The tribunal held that the employee’s dismissal was substantively and procedurally fair. Whilst the tribunal noted that the panel had not set out reasons for upholding the dismissal, it decided that it could be gathered from the decision to uphold that the reasons were the same as for the initial dismissal.

The employee appealed to the EAT, arguing that the judge had made an error in law by concluding that the dismissal was procedurally fair given the lack of reasoning given for the appeal. The appeal was dismissed. The employee’s argument that tribunals cannot hold a dismissal to be fair without hearing from a member of an appeal panel was rejected. The EAT accepted that the dismissal effectively ended the employee’s teaching career, however noted that the facts had entitled the tribunal to conclude that the dismissal had been fair.

The EAT held that it was important to consider the context of what had happened before when considering an appeal stage. The tribunal had inferred that the appeal panel dismissed the appeal for the same reasons identified at the capability hearing itself and there was no reason to suspect that the appeal panel had taken any irrelevant considerations into account or approached the appeal in an improper way. The EAT refused the employee’s application to appeal to the Court of Appeal.

This case demonstrates that whilst it is usual for employers to call a member of a dismissal appeal panel to give evidence at an unfair dismissal hearing, a failure to do so will not necessarily mean the dismissal is unfair in every case. However, the ACAS Guide states that it is good practice for an employer to confirm in writing the results of an appeal to an employee with reasons. Irrespective of this case, however, it is good practice for employers to set out the reasons for an appeal outcome in writing.

Source: Chadwick Lawrence

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