Labour & European Law Review Weekly Issue 499 07 December 2016
When deciding whether a dismissal is fair, tribunals have to consider whether the employer acted reasonably or not in treating the reason for dismissal as a sufficient reason for dismissing the employee. In Appiah v Compass Group UK & Ireland Ltd, the Employment Appeal Tribunal (EAT) held that it was not perverse for an employment judge to find that she could not query whether a final written warning had been correctly imposed or not.
Ms Appiah, a domestic assistant at Homerton Hospital for many years, was given a final written warning on 7 July 2014 lasting for 12 months, which she did not appeal against.
In January 2015, she was accused of failing to return from leave on the correct day. The final written warning was taken into account at the disciplinary hearing and she was dismissed. She did not tell her employer at the hearing (where she was represented by her union) that she thought the warning had been wrongly imposed or that she had wanted to appeal against it.
She then instructed solicitors to prepare documents for her appeal, in which she queried the final written warning, although she did not actually say it was issued in bad faith. Her appeal was dismissed and she lodged a claim for unfair dismissal.
Section 98(4) of the Employment Rights Act 1996 states that once the employer has established the reason for dismissal (conduct in this case), the question of whether it is fair or unfair depends on:
(a) whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
At the beginning of the hearing, Ms Appiah’s representative asked to raise the issue of whether the final written warning had been imposed in bad faith. However, the employment judge refused to hear it, on the basis that the point should have been raised well before the hearing.
Having heard the evidence, the tribunal decided that the investigation carried out by Ms Appiah’s employer was reasonable and that the company had followed its disciplinary procedure. As Ms Appiah was represented throughout the process, it was reasonable for the company to assume that she had understood the charges against her and that she had had the chance to put her side of the story at every stage.
Likewise, it found that it was reasonable for the officer hearing the appeal to conclude that the final written warning had been correctly imposed and the tribunal could not query that decision. As the reason for dismissal related to Ms Appiah’s conduct, the dismissal was fair.
Ms Appiah appealed on the basis that the tribunal’s decision was perverse. The company argued not only that it was not perverse but that as Ms Appiah had not raised the issue of the internal appeal in her ET1 form, it could not be considered by the tribunal judge.
Dismissing the appeal, the EAT held that the tribunal judge was correct to take section 98(4) into account when considering the substance of what happened throughout the dismissal process including the internal appeal, and whether the process overall was fair.
It concluded that, as the judge had approached the matter correctly in law, the conclusions she had reached were not perverse.
This case underlines the importance of employees appealing against a final written warning – particularly if they consider it to have been issued in bad faith – because an employer may subsequently dismiss an employee for a relatively minor disciplinary infringement relying on the warning, as happened here.