An employee’s failure to return to work after her maternity leave amounted to acceptance...
Employment Law Cases
Procedural failing in dismissal process didn't make dismissal unfair
Elmore v The Governors of Darland High School
Neither a failure to explain why an employee’s appeal had been rejected nor a failure to call witness evidence of the appeal at the tribunal hearing made an employee’s dismissal unfair.
The test for reasonableness, under ERA 1996, s. 98(4) of the ERA 1996 is in two parts: (i) did the employer follow a fair procedure? and (ii) did the employer act reasonably in treating the reason as a sufficient reason for dismissal?
This case involved a maths teacher, Ms Elmore, who been in the profession for over 30 years. The school had concerns over her teaching. She was offered support but nothing changed. She was eventually taken though a capability procedure and dismissed, a decision upheld by the appeal panel.
A tribunal dismissed her claim. Although the decision of the appeal panel did not set out reasons for upholding the capability hearing’s decision to dismiss, it could be gleaned that by upholding the original decision the appeal panel accepted the decision made and the reasons for the decision made at the earlier stage. Ms Elmore appealed challenging the procedural fairness of her dismissal.
The EAT upheld the tribunal’s decision. The tribunal had made detailed findings about the procedure, had the opportunity to hear from key decision makers in the process and had information about the appeal process, including the minutes. The minutes of the appeal meeting were consistent with a fair process having been followed. The EAT also commented that Ms Elmore did not submit any fresh evidence or argument to the appeal panel and it was therefore a rerunning of the arguments upon which she’d already relied.
Therefore, despite the absence of a reasoned appeal decision or evidence from a member of the appeal panel, the tribunal was entitled to infer that the appeal panel upheld the capability dismissal for the same reasons as those relied on by the capability panel itself.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0209_16_0405.html
This decision shouldn’t be viewed as indicating any relaxation of the procedural rules relating to disciplinary appeals. However, it’s heartening for employers that minor flaws won’t invalidate a dismissal process as long as, substantively, overall fairness has been achieved.
The non-statutory ACAS guide to Discipline and Grievances recommends that you confirm in writing to an employee the results of their appeal and the reasons for the decision. There are no strict rules as to how you do this but any correspondence should clearly set out the result of the appeal and the reasons for reaching the decision.