Galloway v Barnet Enfield & Haringey Mental Health NHS Trust

For the purposes of Employment Rights Act 1996 section 98A(2), an employer may rely on the fact that the employee would have been fairly dismissed after a proper procedure, even where that dismissal would have occurred later than the actual dismissal, provided the employee suffered no financial detriment from the delay. Section 98A(2) can determine the unfair-dismissal basic award, but it does not remove a separate award for injury to feelings arising from a failure to make reasonable adjustments under the Disability Discrimination Act 1995. The fairness of a tribunal’s evidential and case-management decisions is assessed in context, and apparent bias requires a real possibility of bias judged by a fair-minded and informed observer.

An Employment Tribunal found that an employee’s dismissal for accessing pornographic internet material was for a potentially fair reason but was procedurally unfair. It also found that the employer had failed to make reasonable adjustments for the employee’s disability in connection with the disciplinary hearing, contrary to section 3A(2) of the Disability Discrimination Act 1995. The Tribunal awarded £3,544, comprising a reduced basic award and £2,500 for disability discrimination.

The Employment Appeal Tribunal refused permission to appeal. The employee appealed to the Court of Appeal, and the employer cross-appealed on the application of section 98A(2) of the Employment Rights Act 1996. The issues included late expert evidence, cross-examination on an excluded document, the assessment of a hypothetical fair dismissal, apparent bias, and the effect of the disability-discrimination finding.

1. Appeal and evidential matters. The appeal was heard as a full appeal against the refusal of permission to appeal to the Employment Appeal Tribunal. The Tribunal was entitled, as a matter of case management, to exclude the Vogler report because it was introduced very late, after prior disclosure and witness-statement rulings, and admitting it would have required an adjournment. It was also entitled to permit cross-examination based on Websense 1, although that document was not in evidence. The document’s contents did not become evidence unless the witness made admissions, and the Tribunal would have erred only if it relied on the document in its findings. It did not do so.
2. Hypothetical fair dismissal. The Tribunal’s factual findings, including rejection of the employee’s defences and the existence of five three-minute visits to relevant sites, provided a proper basis for concluding that the employer would have fairly dismissed him by 27 January 2007. In an unfair-dismissal case, the question is whether the employer had a genuine belief in misconduct, reasonable grounds for that belief, and carried out as much investigation as was reasonable in all the circumstances, applying British Home Stores v Burchell. The issue is not whether the employee actually committed the misconduct.
3. Apparent bias. Applying the fair-minded and informed observer test, there was no real possibility of bias merely because a lay tribunal member had previously worked for another NHS body. The member had never worked for the respondent Trust, had no relevant connection with it, and the dispute raised no general policy issue. The fact that he had been in the minority on the unfair-dismissal issue would not have cured apparent bias if it had existed.
4. Cross-appeal and section 98A(2). The Tribunal should have held that the dismissal was not unfair within section 98 of the Employment Rights Act 1996, because the employer would have fairly dismissed the employee by 27 January 2007. The court left open the general question whether section 98A(2) contains an implicit timing qualification. On these facts, the later date did not prevent reliance on section 98A(2), since the extra month made no financial difference and the employer did not thereby benefit from its procedural failings. The cross-appeal therefore succeeded as to the £1,044 basic award.
5. Disability discrimination. The Tribunal’s finding concerned a failure to make reasonable adjustments, not a finding that the dismissal itself was discriminatory. Section 98A(2) could remove the basic unfair-dismissal award but could not cure the separate claim for hurt feelings arising from the failure to make reasonable adjustments. The £2,500 award under the Disability Discrimination Act 1995 stood. The total award was reduced from £3,544 to £2,500.

• Court of Appeal (Civil Division): [2010] EWCA Civ 1368. The employee’s appeal was dismissed. The employer’s cross-appeal succeeded in respect of the £1,044 basic award but failed in respect of the £2,500 disability-discrimination award.
• Employment Appeal Tribunal: Permission to appeal was refused by orders dated 13 May 2009 and 21 August 2009. No citation is stated in the judgment.
• Employment Tribunal: By judgments dated 13 November 2008 and 10 February 2009, the Tribunal found unfair dismissal and failure to make reasonable adjustments, and awarded £3,544.