Foster v Somerset County Council

A finding of procedural unfairness does not by itself show that dismissal would have been avoided if a fair procedure had been followed. Procedural fairness is assessed by reference to the reasonable employer, whereas contributory fault focuses on the employee’s conduct and its causal contribution to dismissal. A finding of contributory fault is factual. The Employment Appeal Tribunal may interfere only for an error of law or perversity; it cannot substitute its own assessment merely to achieve consistency with a finding of procedural unfairness. Appellate proceedings confined to questions of law do not permit re-litigation of facts or admission of new evidence. Where the Employment Tribunal has made the necessary findings, remission for rehearing is unnecessary.

Mrs Foster complained to an Employment Tribunal that Somerset County Council had unfairly dismissed her after prolonged workplace difficulties and her refusal to engage with proposed meetings and redeployment.

The Employment Tribunal dismissed the complaint. It held that the dismissal was substantively and procedurally fair. Alternatively, it found that she would have been dismissed even if a full disciplinary and appeal procedure had been followed, and that she had contributed 100 per cent to her dismissal.

The Employment Appeal Tribunal held the dismissal procedurally unfair, reduced contributory fault to 90 per cent and did not remit the claim. The Council appealed against the reduction. Mrs Foster cross-appealed, seeking remission, re-litigation of factual issues and admission of further evidence. The central issues were the EAT’s jurisdiction to alter contributory fault and the proper scope of the cross-appeal.

Disposition

The Council’s appeal was allowed. The Employment Tribunal’s decision stood. Mrs Foster’s cross-appeal was dismissed. Costs of the appeal were limited to £2,500.

1. Contributory fault. A finding of contributory fault is a finding of fact. Under the principle stated in Hollier v Plysu Ltd [1983] IRLR 260, the EAT could interfere only if the tribunal had gone wrong in law or its conclusion was one which no reasonable tribunal could have reached on the evidence. The assessment required a broad, commonsense judgment, and the EAT could not substitute its own view.
2. Procedural unfairness and causation. The Employment Tribunal had found that Mrs Foster would have been dismissed even if proper procedures had been followed. The EAT’s finding that the dismissal was procedurally unfair did not imply that dismissal might have been avoided. Procedural fairness was assessed from the perspective of a reasonable employer, while contributory fault focused on the employee’s conduct. The EAT therefore erred in reducing the contribution finding merely to make its conclusions consistent.
3. Coxon. Coxon v Rank Xerox UK Ltd (1116/99) was considered, but the reason for that decision was unclear. It did not justify altering an unchallenged factual finding of 100 per cent contribution.
4. Cross-appeal and evidence. The appeal route from the Employment Tribunal through the EAT and to the Court of Appeal was confined to questions of law. Mrs Foster could not reopen factual findings or introduce evidence directed to contradicting them. A rehearing was unnecessary because the Employment Tribunal had carefully considered the evidence and had already made the material findings.
5. Scope of permission. The Court considered it probably correct that the permission decision under rule 3(10) had confined the EAT appeal to procedural fairness, but it did not decide that issue because the appeal was resolved on the factual-interference ground.

1. Court of Appeal (Civil Division) — The Council’s appeal was allowed, the Employment Tribunal’s decision stood, and Mrs Foster’s cross-appeal was dismissed. [2004] EWCA Civ 222.
2. Employment Appeal Tribunal — On 31 July 2003, Elias J and two lay members allowed Mrs Foster’s appeal, substituted a finding of unfair dismissal and reduced contributory fault from 100 per cent to 90 per cent.
3. Employment Tribunal — The complaint was dismissed. The tribunal held the dismissal fair and alternatively found that Mrs Foster would have been dismissed following a full procedure and had contributed 100 per cent to her dismissal.