UPS Ltd v Harrison

In unfair dismissal cases, the tribunal must identify and characterise the employer’s actual reason for dismissal. It must not substitute its own view of the employee’s conduct or capability for the employer’s reason. Where dismissal follows repeated accidents, the tribunal must consider whether the employer reasonably concluded that the accidents were avoidable, whether the investigation and procedure were reasonable, and whether dismissal fell within the band of reasonable responses. Failure to follow an employer’s internal policy does not by itself make a dismissal unfair. The statutory question remains whether the procedure was reasonable in the circumstances, having regard to equity and the substantial merits of the case.

UPS dismissed Mr Harrison, a long-serving feeder driver, after treating three accidents within twelve months as avoidable under its three-strikes rule. The Employment Tribunal upheld his unfair-dismissal claim. It characterised the final accident as a capability matter, found the rule’s application unfair, criticised the warnings and procedure, and concluded that dismissal fell outside the band of reasonable responses.

UPS appealed, arguing that the tribunal had substituted its own view for the employer’s conclusions and had failed to apply the statutory reasonableness test. The central issues were how to characterise the employer’s reason, whether the conclusions and procedure were reasonable, and whether dismissal was a reasonable response.

1. Appeal allowed and case remitted. The case was remitted to a freshly constituted Employment Tribunal.
2. Under section 98(1) of the Employment Rights Act 1996, the tribunal must first find the employer’s own reason for dismissal and then characterise that reason in statutory terms. It is not bound by the employer’s label, but it must characterise the employer’s reason rather than make its own findings about the employee’s conduct or capability. The tribunal had wrongly started from its own view that Mr Harrison was driving carefully.
3. Applying the guidance in Sutton & Gates (Luton) Ltd v Boxall, a failure to meet the required standard through want of care is more appropriately characterised as conduct, whereas inherent inability to perform is capability. UPS’s stated reason was three accidents it regarded as avoidable through lack of due care, so the appropriate characterisation was conduct.
4. Under section 98(4), the tribunal must review whether the employer reasonably reached its conclusions. It must not substitute its own conclusion. The tribunal should have asked whether UPS reasonably concluded that each accident was avoidable and whether that conclusion followed reasonable investigation. Its statement that it was not convinced by an employer witness did not answer that statutory question.
5. The tribunal also had to assess whether the procedure was reasonable. Breach of an internal policy does not itself establish unfairness. The relevant question was whether giving the warnings together, in view of the timing of the accidents, was reasonable having regard to equity and the substantial merits of the case.
6. The band-of-reasonable-responses conclusion could not stand because the tribunal had not made secure findings on the reasonableness of UPS’s conclusions or procedure. The tribunal was directed to consider the avoidability of the accidents, investigation, procedure, the reasonableness and communication of the three-strikes policy, and the reasonableness of dismissal.

• Employment Appeal Tribunal: allowed UPS’s appeal against the Employment Tribunal’s judgment dated 3 November 2010 and remitted the case for rehearing by a freshly constituted tribunal.
• Employment Tribunal, Newcastle upon Tyne: upheld Mr Harrison’s claim of unfair dismissal.