South Tyneside Council v Ward

Fairness must be assessed by considering the dismissal process as a whole. An Employment Tribunal must consider relevant events occurring between notice being given and the effective termination date, including internal appeals, offers of alternative employment and the employee’s conduct during the notice period. A dismissal that was procedurally premature when notice was given may nevertheless become fair by the termination date. The same broad assessment may be required where termination-related disability discrimination issues are closely connected with the fairness of dismissal.

South Tyneside Council appealed against Employment Tribunal findings that Mrs Ward had been unfairly dismissed and subjected to disability discrimination. The Tribunal had treated the dismissal as unfair because notice was given before a specific offer of suitable alternative employment and before completion of a final grievance stage. It also found no contribution to the dismissal and rejected reliance on Employment Rights Act 1996, section 98A(2).

The central issue was whether fairness had to be assessed at the date notice was given or by considering the entire period ending with termination.

1. Appeal allowed in part and claims remitted. The findings concerning unfair dismissal, the termination-related disability discrimination claim and contribution were remitted to the same Employment Tribunal. The cross-appeal was dismissed.
2. The notice given on 18 October 2007 was a unilateral notice terminating employment on expiry of the notice period. It was not conditional and was not capable of unilateral withdrawal. The possibility that the employment might continue by agreement if suitable alternative employment was accepted did not make the notice conditional.
3. The Tribunal had erred by treating the dismissal as an event fixed when notice was given. Under section 98(4) of the Employment Rights Act 1996, fairness must be assessed in all the circumstances, having regard to equity and the substantial merits of the case. That requires consideration, where relevant, of events between notice, the notice period and effective termination.
4. The Tribunal therefore had to consider whether any initial procedural unfairness was overtaken by later events, including the making and rejection of suitable alternative employment offers, the continuation or abandonment of grievances, and the parties’ conduct during the notice period. Acceptance of alternative employment might have avoided or deferred termination by agreement.
5. The termination-related disability discrimination findings were sufficiently intertwined with the unfair dismissal findings to require reconsideration on the same broader approach. The Tribunal could reach the same, a modified or a different result.
6. The Tribunal was not wrong to reject reliance on section 98A(2) of the Employment Rights Act 1996. The perversity challenge did not approach the required threshold. The observation in Alexander that section 98A(2) may require proof that dismissal would have occurred at the same time was not generally applicable to ordinary unfair dismissal claims.

• Employment Appeal Tribunal: allowed the Council’s appeal on the legal approach to assessing dismissal, and remitted specified findings to the same Employment Tribunal. The cross-appeal was dismissed.
• Employment Tribunal: found unfair dismissal and termination-related disability discrimination, limited compensation for unfair dismissal to a two-month period, found no contribution, and rejected reliance on section 98A(2) of the Employment Rights Act 1996.