Alboni v Ind Coope Retail Ltd

For unfair dismissal, dismissal occurs when the employee’s employment actually terminates, rather than when notice is given. In deciding whether a potentially fair reason was reasonably treated as sufficient, the tribunal must consider the whole dismissal process up to termination. This includes relevant events during the notice period, such as the employer’s consideration of representations or an application for continued employment. Authorities concerning reasons discovered after termination do not prevent that approach. They prevent a new reason emerging during a post-termination review or appeal from retrospectively justifying an otherwise insufficient dismissal. The statutory reasonableness inquiry therefore includes the period between notification and the expiry of notice.

The employee and her former partner were jointly employed as manager and manageress of a public house under a contract linking their employment. After the partner resigned, the employers notified both employees that their employment would end. The employee later sought to remain as sole manager, but her application was not considered because her business plan was apparently lost in the post.

An Industrial Tribunal found that she had been dismissed for some other substantial reason and that the dismissal was fair. The Employment Appeal Tribunal allowed her appeal, holding that the Industrial Tribunal had wrongly considered events after notification of dismissal, and remitted the case for rehearing. The employers appealed. The central issue was whether events occurring between notification and actual termination could be considered under the unfair dismissal provisions.

1. Appeal allowed unanimously. Simon Brown LJ gave the principal judgment; Schiemann and Robert Walker LJJ agreed. The decision of the Industrial Tribunal was restored.
2. Under the unfair dismissal provisions, dismissal means termination of the employee’s actual employment. The notice given on 16 May was notification that employment would end; the dismissal occurred when employment actually ended on 6 July. This approach was supported by section 67(4)(a) of the Employment Protection Consolidation Act 1978.
3. The restrictions identified in Devis v Atkins [1977] ICR 192 and West Midlands Cooperative v Tipton [1986] ICR 192 concern reasons emerging during an internal review or appeal after employment has ended. Such a new reason cannot retrospectively justify the dismissal. Those authorities did not prevent consideration of events occurring after notice but before termination.
4. Stacey v Babcock Power [1986] ICR 221 supported consideration of the whole dismissal process from notice to expiry. Parkinson v March Consulting Ltd [1997] IRLI 308 made clear that the employer’s reason must be assessed by reference both to the reason for giving notice and to the reason existing when dismissal occurred. The tribunal was therefore entitled, and effectively required, to consider the intervening events under sections 57(1) and 57(3).
5. Under section 57(3), the employers’ willingness to consider whether the employee could manage the public house alone, together with the pressure of time and the operational circumstances, was relevant to whether they acted reasonably. The Industrial Tribunal was also entitled to find that continued employment as sole manager was impracticable. The EAT had erred in requiring the Industrial Tribunal to disregard the notice-period events.

1. Court of Appeal (Civil Division): Allowed the employers’ appeal and restored the Industrial Tribunal’s decision dismissing the unfair dismissal claim.
2. Employment Appeal Tribunal: Allowed the employee’s appeal against the Industrial Tribunal and remitted the case for a complete rehearing before a fresh tribunal.
3. Industrial Tribunal: Dismissed the employee’s complaints of unfair dismissal and sex discrimination.