McNiffe v Redcar & Cleveland Borough Council

In a capability dismissal, a prior warning is normally required, but it is not an inflexible legal prerequisite. The question is whether, in the circumstances, the employee knew from the employer’s conduct what standard was required and what consequences would follow from continued failure. The Employment Tribunal must decide whether a warning was necessary. An appellate tribunal should not interfere with factual findings where there is evidence capable of supporting them. An appeal on fact or alleged perversity cannot be used to reopen matters outside the permitted grounds, particularly where the necessary evidential material is unavailable.

Mrs McNiffe was dismissed by Redcar & Cleveland Borough Council after persistent failures in casework recording and compliance with managerial instructions. An Employment Tribunal found that the reason was capability, that the employer had warned and assisted her adequately, had followed a reasonable procedure, and that dismissal was reasonable in all the circumstances. Her disability-discrimination complaint had been withdrawn.

The Employment Appeal Tribunal dismissed her appeal, finding no error of law. She then renewed an application for permission to appeal out of time to the Court of Appeal. The central issues were whether dismissal for capability required an express warning in every case, whether the Tribunal’s factual findings could be challenged, and whether later evidence concerning her health provided a proper basis for appeal.

1. Application dismissed. The one-day delay was not itself decisive, but the proposed appeal had no real prospect of success and disclosed no other compelling reason for permission.
2. The proposition that an employer cannot rely on capability without an express warning was rejected. Polkey v Dayton Services Ltd [1988] AC 344 states that normally an employer will not act reasonably without a fair warning and an opportunity to improve. The word “normally” recognises that a warning is not required in every case.
3. Whether a warning was necessary was a matter for the Employment Tribunal. The Tribunal was entitled to find that Mrs McNiffe understood that accurate casework recording was fundamental and understood the consequences of failing to meet the required standard. On that finding, the absence of a further formal warning did not make the dismissal unfair.
4. An appellate body may not substitute its own view of the facts. The Employment Tribunal was the sole arbiter of fact, and its findings could not be disturbed where there was evidence on which it could properly rely. The proposed perversity challenge was in any event outside the permitted grounds and unsupported by the evidential materials required for such an argument.
5. The health arguments could not found an appeal. They were outside the grounds permitted by the EAT, had not been advanced at the disciplinary stage because Mrs McNiffe had rejected a medical presentation of her case, and were unsupported by medical evidence before the Tribunal. A hypothyroidal condition discovered after dismissal could not provide a basis for appeal.

• Court of Appeal (Civil Division): renewed application for permission to appeal out of time dismissed.
• Employment Appeal Tribunal: appeal against the Employment Tribunal’s decision dismissed; the EAT found no error of law.
• Employment Tribunal: complaints of unfair dismissal and disability discrimination were brought; the disability-discrimination complaint was withdrawn and the unfair-dismissal complaint was rejected.