Royal Mail Group Ltd v Kelly

An exceptionally long delay in promulgating an Employment Tribunal judgment may be inexcusable without amounting to an error of law. The appellate question is whether the delay caused a procedural irregularity or affected the decision.

Under the statutory dismissal procedure, the employer need not follow a rigid sequence. The employee must receive sufficient information about the case to enable a proper response. The tribunal must raise and explain any issue under section 98A(1) before deciding it.

Section 98A(2) applies only where a procedural defect, by itself, made the dismissal unreasonable. It cannot cure substantive unfairness going to the heart of the decision-making process.

The employee was dismissed for alleged gross misconduct after industrial unrest and picketing. The Employment Tribunal found automatic unfair dismissal because Steps 1 and 2 of the statutory procedure had not been completed. It also found the dismissal procedurally and substantively unfair because the National Appeals Panel interviewed complainants and witnesses without the employee being present or knowing their evidence.

The employer appealed, challenging the effect of the delay, the Tribunal’s treatment of evidence, the findings under the statutory procedure, the failure to apply section 98A(2), and the adequacy of the Reasons. The central issues were whether the delay or errors invalidated the decision, whether Steps 1 and 2 had been satisfied, and whether the procedural defects were separable from substantive unfairness.

1. Appeal partly allowed. The finding of automatic unfair dismissal was set aside, but the finding of procedural and substantive unfairness was upheld.
2. The delay of about 18 months was shocking and inexcusable. Delay alone is generally a question of fact. It becomes an error of law only if it creates a procedural irregularity. The omission of Mr Buckley’s evidence from the written Reasons was regrettable, but the Tribunal confirmed that it had considered his evidence, and the omission did not affect the central reasoning.
3. The Tribunal should have raised section 98A(1) as an issue and given the parties an opportunity to address it. Its failure to do so was a material procedural irregularity. Nevertheless, the material supplied to the employee before and during the fact-finding meetings gave him extensive knowledge of the allegations and evidence. Steps 1 and 2 were therefore satisfied on a proper construction of the statutory procedure.
4. Section 98A(2) concerns procedural fairness only. It applies where a procedural error, by itself, made the dismissal unreasonable and the employer shows that dismissal would nevertheless have occurred. It does not apply where the defect is substantive and goes to the heart of the decision-making.
5. The National Appeals Panel’s procedure was capable of being found substantively unfair. The decision-making body interviewed 15 witnesses, including principal complainants, in the employee’s absence. He did not know what they had said or have an opportunity to challenge their evidence. That defect was not merely technical, and the Tribunal’s conclusion fell within the range of reasonable decisions open to it. The appeal was accordingly dismissed except in relation to automatic unfair dismissal.

• Employment Appeal Tribunal: allowed the appeal in part. The finding of automatic unfair dismissal was set aside. The findings of procedural and substantive unfairness were upheld.
• Employment Tribunal, Bedford: upheld the unfair dismissal complaint and directed a remedy hearing. The Reasons were registered on 1 June 2010.