Wilson v Post Office

In an unfair dismissal claim, the reason for dismissal is the set of facts or beliefs causing the employer to dismiss, not merely the label used in pleadings. An employment tribunal must identify and legally characterise the employer’s actual reason. A dismissal under an agreed attendance procedure because the employee failed to meet its attendance requirements may constitute dismissal for some other substantial reason under section 98(1)(b) of the Employment Rights Act 1996, rather than dismissal for capability based on ill health. An appellate tribunal may intervene where the tribunal below made that characterisation error as an error of law. The fairness question should ordinarily be remitted where the employment tribunal, as the industrial jury, could reasonably reach more than one conclusion.

Mr Wilson, a postman, was dismissed after repeated medically certified absences under Royal Mail’s agreed attendance procedure. The employment tribunal treated the dismissal as one for capability based on health under section 98(2)(a) of the Employment Rights Act 1996 and found it unfair.

The Employment Appeal Tribunal held that the tribunal had identified the wrong reason for dismissal, substituted a finding that the dismissal was fair, and dismissed the complaint. The issue before the Court of Appeal was whether that recharacterisation and substitution were permissible, and whether the matter should instead be remitted.

1. Appeal allowed in part. The Employment Appeal Tribunal correctly identified an error of law, but should have remitted the complaint rather than deciding fairness itself. There was no order as to costs.
2. The employer’s actual reason was Mr Wilson’s failure to satisfy the requirements of the agreed attendance procedure. The fact that the absences resulted from illness did not make ill health the reason for dismissal. Under the approach in Abernethy v Mott, Hay and Anderson [1974] ICR 323, the reason is the facts known to, or beliefs held by, the employer which caused the dismissal.
3. The tribunal therefore erred by treating the case as a capability dismissal under section 98(2)(a) and by assessing fairness on the footing that the employer had dismissed for ill health. The proper legal characterisation was dismissal for some other substantial reason under section 98(1)(b), arising from failure to comply with the attendance procedure.
4. Nelson v British Broadcasting Corporation [1977] ICR 649 did not prevent that correction. It concerned an employer seeking to change the essential factual basis of its case from redundancy to conduct. Here the essential issue had remained constant, and the change was only a correction of nominal legal characterisation.
5. The Employment Appeal Tribunal had jurisdiction to intervene because the tribunal’s error was one of law. The principle in O’Kelly v Trust House Forte [1983] ICR 728 required the mixed issue to be purified into the discrete legal error, which had occurred here.
6. Although the Employment Appeal Tribunal had all necessary facts, fairness remained for the employment tribunal, which is an industrial jury. Only in an extreme and clear case could an appellate body conclude that no reasonable tribunal could reach any conclusion other than fairness. That inevitability was not established.

• Employment Tribunal: found the dismissal unfair, treating the reason as capability based on ill health.
• Employment Appeal Tribunal: allowed the employer’s appeal, held that the tribunal had selected the wrong reason, substituted a finding of fairness, and dismissed the complaint.
• Court of Appeal (Civil Division): allowed Mr Wilson’s appeal to the extent that the matter was remitted to the original employment tribunal for reconsideration on the basis that the dismissal arose from failure to comply with the attendance procedure, rather than capability by reason of health.