Douarin v Abercorn Care Ltd

The statutory dismissal procedures required no advance notice of matters an employer intended to raise at an appeal meeting. The appeal stage differed from the pre-dismissal stages: the employee needed only to notify the employer of the wish to appeal and was not required to state the grounds. The statutory scheme therefore imposed no corresponding notification duty on the employer. Any separate question of fairness fell to be considered under section 98(4) of the Employment Rights Act 1996. On the facts, the employer had decided to rely on newly discovered material only after the employee produced documents at the appeal hearing. The appeal was dismissed.

The Employment Tribunal dismissed claims of race discrimination, age discrimination and unfair dismissal brought by a care-home manager. The dismissal followed findings of gross misconduct. On appeal, the sole surviving ground concerned compliance with the statutory dismissal procedures in Part 1 of Schedule 2 to the Employment Act 2002.

The claimant argued that the employer had to notify her before the appeal hearing that it intended to rely on a handwritten letter found after dismissal. The central issue was whether such a notification requirement could be read into the statutory appeal procedure.

1. Appeal dismissed. The statutory dismissal procedure contained no requirement that an employer give advance notice of any matter intended to be raised at an appeal meeting.

2. The scheme deliberately treated the appeal stage differently from the initial stages. Before dismissal, Step 1 required written identification of the conduct, characteristics or other circumstances leading the employer to contemplate dismissal, and Step 2 required an opportunity to respond. At the appeal stage, the employee was required only to notify the employer of the wish to appeal. No prior notice of the grounds of appeal was required from the employee, and no reciprocal notice obligation arose for the employer.

3. The requirement in Step 1 was expressed in three alternative categories. The words were conjunctive only in the sense that one category had to apply; the employer was not required to identify all three.

4. Any unfairness arising from failure to disclose material before an appeal hearing was a separate question under section 98(4) of the Employment Rights Act 1996, not a requirement imposed by the statutory procedure itself.

5. In any event, the employer had not formed an intention before the appeal hearing to rely on the letter. That decision was made only after the claimant produced documents containing allegations of discrimination. The proposed notification duty could therefore not have been breached.

6. The Tribunal’s findings that the dismissal was caused by two acts of gross misconduct, and was reasonable, were unchallenged. Even if the claimant’s construction had been correct, her contribution would probably have eliminated any compensation. A bare finding of unfair dismissal was not the statutory purpose of the remedies under section 112 of the Employment Rights Act 1996.

The Tribunal’s decision was upheld and the appeal dismissed. Any application for expenses was to be determined on written submissions.

• Employment Tribunal, Edinburgh: claims of race discrimination, age discrimination and unfair dismissal dismissed; judgment registered on 6 July 2009.
• Employment Appeal Tribunal: appeal dismissed.