Lucey v. Governing Body of Altrincham Grammar School for Girls

A capability dismissal may remain fair under Employment Rights Act 1996, section 98(4), despite a procedural breach, where the employment tribunal finds that the overall process was reasonable and fair on the evidence.

A case concerning a final warning and subsequent dismissal for the same misconduct does not govern a capability dismissal merely because both cases involve an earlier warning followed by dismissal. The legal and factual context must be examined.

The claimant, a chemistry teacher, appealed against the Employment Tribunal’s dismissal of her unfair dismissal claim. She had been dismissed on capability grounds after concerns about her teaching competence and a period of sickness absence.

The appeal was permitted to proceed on two issues. First, whether the tribunal relied on facts not before the dismissing panel, including the absence of a final four-week capability assessment. Secondly, whether the Court of Appeal’s decision in Sarkar v West London Mental Health NHS Trust required the dismissal to be found unfair.

1. Appeal dismissed. The Employment Tribunal was entitled to rely on the evidential material identified in its reasons. The occupational health reports and the claimant’s reluctance to return to work had been raised in the material before the disciplinary panel, and the failure to complete the four-week assessment had been addressed in the proceedings.
2. The tribunal had found that the employer breached its adopted capability procedure by moving to a disciplinary hearing without completing the final assessment. Applying section 98(4) of the Employment Rights Act 1996, it was nevertheless entitled to conclude that the overall process remained fair. The tribunal had found an impasse, transparency, sufficient evidence and a reasonable decision to continue under the capability procedure rather than dismiss for sickness absence.
3. Sarkar v West London Mental Health NHS Trust [2010] IRLR 508 was materially different. That case concerned misconduct, where conduct treated as relatively minor for the purpose of a final warning was later elevated to gross misconduct justifying dismissal. The present case concerned capability and did not involve that inconsistency.
4. Neither ground disclosed an error of law in the tribunal’s decision.

• Employment Appeal Tribunal: appeal against the Employment Tribunal’s decision dismissing the unfair dismissal claim dismissed.
• Employment Tribunal: the tribunal chaired by Employment Judge Feeney dismissed the claim, with reasons promulgated on 15 September 2009.