Dobie v Burns International Security Services (UK) Ltd

Under section 57(1)(b) of the Employment Protection (Consolidation) Act 1978, the tribunal must first decide whether the established reason is of a kind capable of justifying dismissal of an employee holding the relevant position. That gateway does not decide whether the particular dismissal was fair.

Under section 57(3), fairness must be assessed in accordance with equity and the substantial merits. The employer must consider the injustice likely to be caused to the employee on the facts then known. A tribunal misdirected on that issue must have its decision remitted unless the result is plainly and unarguably right despite the error.

The appellant was a senior security officer at Liverpool Airport. The airport authority required his removal from the airport following friction with its chief security officer. His employer had no comparable local post and offered lower-paid alternative work. That offer amounted to a dismissal.

The Liverpool Industrial Tribunal unanimously held that the dismissal was not unfair. The Employment Appeal Tribunal, by a majority, held that the tribunal had misdirected itself by excluding injustice to the employee from its assessment, but declined to interfere because it could not regard the result as perverse.

The appeal concerned whether injustice to the employee was relevant under section 57(3) and the consequence of the tribunal's misdirection.

1. Appeal allowed unanimously. The Master of the Rolls, with whom Slade and Parker LJJ agreed, set aside the Employment Appeal Tribunal's decision and remitted the case to a different industrial tribunal.

2. Section 57(1)(b) of the Employment Protection (Consolidation) Act 1978 requires a preliminary classification of the employer's reason. The question is whether it is a reason of a kind capable of justifying dismissal of an employee in the relevant position. It is not whether that reason justified dismissing the particular employee. The airport authority's refusal to permit continued work could therefore constitute “some other substantial reason”, but that did not conclude the fairness inquiry.

3. Under section 57(3), the tribunal must decide whether the employer reasonably treated that reason as sufficient, in accordance with equity and the substantial merits. The justice or injustice to the employee is an important consideration on the facts known at dismissal. Relevant matters may include length and quality of service and the employee's prospects of obtaining other work. None is necessarily decisive.

4. W. Devis & Sons Ltd. v. Atkins (1977) Appeal Cases 931 did not justify excluding such matters generally. Its observations concerned subsequently discovered information and did not alter the statutory requirement to consider the employee's likely injustice on the contemporaneous facts.

5. An appellate court may intervene only for an error of law, including a wrong legal direction or a conclusion no reasonable tribunal could reach. Once an express misdirection is established, the question is whether the result was plainly and unarguably right despite it. If the result was wrong or might have been wrong, the matter must be remitted to the fact-finding tribunal. The Employment Appeal Tribunal therefore erred in requiring perversity before remitting.

Order: appeal allowed with costs; remitted to a different industrial tribunal.

• Court of Appeal (Civil Division) — Allowed the employee's appeal, reversed the Employment Appeal Tribunal and remitted the case to a different industrial tribunal: [1985] 1 WLR 43.

• Employment Appeal Tribunal — By a majority, affirmed the Industrial Tribunal's finding of no unfair dismissal despite identifying a misdirection.

• Industrial Tribunal, Liverpool — Unanimously held that the employee had not been unfairly dismissed.