Smith v London Metropolitan University

For unfair dismissal, the reason for dismissal and the fairness of that dismissal are separate questions. An employer’s mistaken belief that an employee has breached the contract may still identify misconduct as the reason for dismissal. The contractual scope of the employee’s duties remains material to fairness under Employment Rights Act 1996, section 98(4).

An implied duty to co-operate ordinarily governs performance of agreed contractual duties. It cannot, without express agreement or necessary implication, enlarge those duties. An employer should investigate what duties were actually agreed, especially after a change of department. A contractual breach in operating a grievance procedure is relevant to fairness, but does not automatically prevent a later dismissal.

Dr Smith, a senior lecturer in Theatre Studies/Performing Arts, was dismissed after refusing duties including teaching English literature and a Higher Education Orientation module following her move to the English literature department. An Employment Tribunal dismissed her claims of unfair dismissal and detriment for protected disclosure, while finding that the University had fundamentally breached the grievance procedure by failing to include a governor in a Stage 4 appeal.

Dr Smith appealed. The University cross-appealed against the finding of fundamental breach. The central issues were whether the Tribunal correctly identified the scope of Dr Smith’s contractual duties, whether its errors affected the fairness assessment, whether the grievances were protected disclosures, and whether the grievance-procedure breach was fundamental.

1. The appeal against dismissal of the unfair-dismissal claim was allowed and the claim was remitted to a differently constituted Employment Tribunal under Employment Rights Act 1996, section 98(4). The finding that the reason for dismissal was misconduct stood. The appeal concerning detriment for protected disclosure was dismissed. The University’s cross-appeal was allowed.

2. The Tribunal had correctly distinguished the employer’s reason for dismissal from the question whether dismissal was fair. The employer dismissed Dr Smith because it considered her refusal to perform duties to be misconduct. That conclusion could remain even if the employer and Tribunal were mistaken about the contractual scope of those duties.

3. The Tribunal erred in treating Dr Smith’s capability or qualifications as determinative of her contractual obligations. Those obligations had to be identified from the express and implied terms of the contract. The reference to broadening experience did not appear in the contractual provisions recited and did not require teaching subjects related to Theatre Studies.

4. An implied duty of co-operation may govern performance of agreed contractual duties, but cannot enlarge them. Dr Smith could not be required to teach English literature modules unless she had agreed to undertake them. The Tribunal failed to determine what had been agreed when she moved departments. That omission affected the investigation, the employer’s grounds for belief in misconduct and whether dismissal fell within the range of reasonable responses.

5. The Tribunal also erred by treating the constructive-dismissal question as answering the fairness issue. The University’s admitted failure to provide a Stage 4 grievance panel constituted in accordance with the contractual procedure had to be considered in assessing fairness. It did not, however, automatically deprive the University of the power to dismiss. The Tribunal’s finding that the breach was fundamental was set aside because it gave no adequate reasons; the seriousness and effect of the breach were remitted for assessment.

6. The protected-disclosure claims were correctly dismissed. The Tribunal found that dismissal resulted from misconduct, not from the grievances. Further, applying Cavendish Munro, the grievances were not disclosures of information for the purposes of the statutory definition.

• Employment Appeal Tribunal — appeal from the Employment Tribunal’s judgment entered on 19 April 2010. The unfair-dismissal claim was remitted to a differently constituted Tribunal; the protected-disclosure detriment claim was dismissed; the cross-appeal was allowed.