While we’ve been getting back into the swing of things, the Employment Appeal Tribunal has been busy this August clearing a backlog of judgments from hearings earlier in the year, including a few decisions in dismissal cases which catch the eye.
It has long been recognised that where an employee appeals against their dismissal, despite employment having terminated, the appeal process will be relevant to the question of whether the decision to dismiss was reasonable so far as unfair dismissal proceedings are concerned. Further, in relation to conduct and capability (performance) dismissals, failing to allow an employee the opportunity to appeal against their dismissal will breach the statutory Acas Code of Practice on Statutory and Grievance Procedures, potentially resulting in an uplift in compensation should the dismissal be found to have been unfair.
In Phoenix Academy Trust v Kilroy, Mr Kilroy was summarily dismissed (without notice) by the Trust shortly before he intended to resign based on the Trust’s conduct. He submitted an appeal which the Trust upheld, overturning his dismissal in favour of a final written warning. An employment tribunal found that Mr Kilroy had been unfairly dismissed. Conversely, the EAT decided that the unfair dismissal claim which Mr Kilroy had submitted before his appeal took place could not proceed, however, his constructive dismissal which was based on his resignation after his reinstatement could. The consequence of this judgment therefore appears to be that a dismissed employee who submits an appeal will be bound by its outcome, and if their dismissal vanishes yet they remain unhappy with the outcome or do not wish to continue working for their employer, their only option is to resign and pursue a constructive dismissal claim which may itself have been weakened by the fact that they appealed in the first place.
Who needs the Olympics when you’ve mental gymnastics like this? And it continues in the case of Gallacher v Abellio Scotrail which featured the unusual circumstances of a dismissal where the employer failed to follow any procedure being found to be fair. The key aspect to this judgment was the dismissal in question having been for some other substantial reason rather than conduct on the basis that the decision to dismiss Mrs Gallacher was taken following a breakdown in the working relationship between her and her manager. The fact that neither Mrs Gallacher nor her manager had any remaining trust and confidence in the other undoubtedly shaped the outcome – it is highly unlikely that a conduct dismissal where an employer fails to follow any procedure will be fair, however, while not infinitely wide, the test is whether the dismissal falls within the band of reasonable responses open to the employer in the circumstances, which provides some latitude insofar as procedural fairness is concerned, while there is no rule of law that the absence of any procedure renders a dismissal unfair.
The final case, Evans v London Borough of Brent, is more about a Tribunal procedure than internal proceedings, however, it does clear up the issue of whether there is any intrinsic value in an unfair dismissal judgment, which the EAT has confirmed there is. Mr Evans’ unfair dismissal claim was found to have no reasonable prospects of success other than in relation to the disciplinary procedures followed by his employer (the disciplinary hearing took place in his absence). It was also found that there was no prospect of Mr Evans recovering any financial award because he had significantly contributed to his dismissal and any procedural unfairness would not have affected the outcome. Nevertheless, the EAT overturned the original decision to strike out the claim on the basis that the pure finding of unfair dismissal was a reasonable possibility, although it was also recognised that it remains within a tribunal’s discretion to strike out a claim where continuing to pursue it in such circumstances amounts to an abuse of process.
Some interesting decisions, then, for employers to consider when conducting disciplinary proceedings, particularly 
where these may need to depart from normal procedure such as where hearings take place remotely or delays have been caused by coronavirus. As always, reasonableness will depend on the facts of the case, the circumstances in which the allegations arose and were considered, and the employer’s size and administrational resources.
It makes sense to step back, consider the situation and, where necessary, take advice before going down the disciplinary route, now more than ever, so If we can help you or your business, please contact our Employment Team.
