Nkengfack v Southwark Education Department

When an employee is found guilty of gross misconduct, fairness under section 98(4) may require a proper opportunity to address the appropriate penalty. Failure to invite mitigation is, on its face, a failure to meet proper standards of fairness, although it may be immaterial where dismissal was the only realistic sanction. A tribunal must give sufficient reasons for concluding that dismissal was fair, particularly where evidence could materially affect the choice of sanction. At the permission stage, an arguable failure to address those matters justifies a limited appeal on that issue.

The applicant challenged the fairness of her dismissal after an Employment Tribunal dismissed her unfair-dismissal claim under section 98(4), despite observing that she should preferably have been invited to make mitigation representations after the finding of gross misconduct. The Employment Appeal Tribunal held that the tribunal had sufficiently considered whether a lesser sanction was appropriate and that detailed reasons were unnecessary.

In a renewed application, the Court of Appeal considered whether the tribunal had failed to deal satisfactorily with the mitigation issue, particularly in light of evidence that the applicant had said she would return to work before the conduct relied upon. A separate fresh-evidence ground had already been rejected.

Limited permission to appeal granted. The permission application concerned two matters. Permission was refused in relation to the fresh-evidence issue determined on 8 November 2001. Permission was granted only on the distinct issue concerning the failure to invite mitigation and the Employment Tribunal’s treatment of that issue.

1. In assessing fairness under section 98(4), the absence of any invitation to an employee to address penalty after a finding of gross misconduct is, on its face, a want of proper standards of fairness. The omission may nevertheless be immaterial if there was no realistic alternative to dismissal.
2. The evidence that the applicant had telephoned the school to say that she would return on the following Monday could affect the assessment of the proper sanction. It was therefore at least arguable that the Employment Tribunal had not dealt satisfactorily with the issue.
3. The Employment Tribunal’s reasoning was terse and did not refer to the telephone call. Although the Employment Appeal Tribunal considered that the issue had been sufficiently expressed, there was room for argument that the Employment Tribunal had failed to give sufficient reasons for concluding that dismissal was fair.
4. The application was accordingly adjourned issue-specific and permission to appeal was granted on that ground alone.

Costs thrown away by the adjournment were ordered not to be borne by the respondent in any event.

• Court of Appeal (Civil Division) granted limited permission to appeal on whether the Employment Tribunal had adequately addressed mitigation and given sufficient reasons.
• Employment Appeal Tribunal held that the Employment Tribunal had sufficiently considered whether a lesser sanction than dismissal was appropriate.
• Employment Tribunal dismissed the unfair-dismissal claim under section 98(4), notwithstanding the absence of an invitation to make mitigation representations after the gross-misconduct finding.