Sakharkar v Northern Foods Grocery Group Ltd (t/a Fox's Biscuits)

For unfair dismissal purposes, an employer’s mistaken application of an absence procedure does not automatically make dismissal unfair. The error is relevant to the assessment under section 98(4) of the Employment Rights Act 1996, but the question remains whether dismissal was reasonable in all the circumstances.

That assessment must include the employer’s administrative resources. Where a prescriptive absence policy assigns personnel staff responsibility for ensuring fair and consistent application, their failure to provide effective assistance may make dismissal unreasonable. An employment tribunal may also examine an earlier warning relied upon for dismissal. It is entitled to take account of a warning that was manifestly inappropriate or unsupported by prima facie grounds under the employer’s own procedures.

The claimant had been employed for 17 years and was dismissed after further absences during the currency of a third-stage warning under the respondent’s absence policy. It was later accepted that the warning had been issued in error because one absence should not have counted.

The Employment Tribunal nevertheless held that the dismissal was for some other substantial reason and fair. It regarded the manager’s mistake as genuine and reasonable, and considered that the earlier error was unknown at the time of dismissal. The claimant appealed, alleging errors in the application of section 98(4) of the Employment Rights Act 1996. The central issue was whether the mistaken warning and the respondent’s failure to identify it made dismissal unreasonable.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and a finding that the dismissal was unfair was substituted. Questions of remedy were remitted to the same Tribunal if agreement could not be reached.

2. The Tribunal was correct to classify dismissal for failure to meet the absence procedure as dismissal for some other substantial reason. Wilson v Post Office [2000] IRLR 834 was applied. A genuine, even mistaken, belief in the reason for dismissal may establish a potentially fair reason.

3. Under section 98(4), the question is whether the employer acted reasonably in treating the reason as sufficient for dismissal. The employer’s mistake is relevant but not conclusive. The assessment must be made in the round and must include the size and administrative resources of the undertaking. Farrant v The Woodroffe School [1998] IRLR 176 and Trust House Forte v Aquilar [1976] IRLR 251 supported that approach.

4. The Tribunal erred by concentrating on the Burchell approach and failing to consider the respondent’s personnel department. The policy assigned personnel responsibility for advice, support, training and fair application, and required personnel attendance at final review and dismissal hearings. Those resources were relevant under section 98(4). Royal Society for the Protection of Birds v Croucher [1984] IRLR 425 explained that the Burchell guidance could not replace the statutory appraisal of all the circumstances.

5. The Tribunal was also wrong to treat the third-stage warning as something that had to be accepted without examination. Under Stein v Associated Dairies Ltd [1982] IRLR 447, Tower Hamlets HA v Anthony [1989] IRLR 394 and Co-operative Retail Services v Lucas [1993] UKEAT/145/93, it could consider whether the warning was given in good faith, had prima facie grounds, and was not manifestly inappropriate having regard to the employer’s procedures.

6. The warning was plainly outside the policy and therefore manifestly inappropriate. Had the Tribunal considered that error together with the respondent’s available personnel support, it would have concluded that treating non-compliance with the absence procedure as sufficient reason for dismissal was unreasonable.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s judgment dated 5 January 2010 was allowed. The dismissal was held unfair and the matter was remitted for remedy if necessary.