Governing Body of John Loughborough School & Anor v Alexis

In a mixed-motive dismissal, a prior desire or decision to remove an employee does not by itself prevent subsequent misconduct from being the operative reason for dismissal. The tribunal must determine, as a question of fact and judgment, which consideration was the principal reason. A potential misconduct reason may be a pretext where the evidence shows that the employer used it to achieve an earlier objective. The fact that dismissal would not have occurred at that time but for the misconduct is relevant, but does not determine the principal reason. Where the true reason is capability but the process addresses different alleged misconduct, the dismissal may be unfair. A disciplinary panel’s lack of open-mindedness may independently render a dismissal unfair.

The respondent was the head teacher of a voluntary aided school. The governing body had previously resolved to remove her because it considered her unable to lead the school, but later dismissed her for failing to manage a demonstration on school premises.

An Employment Tribunal found that the demonstration was a pretext and that the principal reason for dismissal was the pre-existing view that she was not up to the job. It also found that the disciplinary panel had approached the matter with a strong predisposition to dismiss. The governing body and the local authority appealed, challenging the Tribunal’s findings on the reason for dismissal and fairness.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the events relied upon as misconduct were a pretext for implementing the earlier decision that the respondent should leave because she was not capable of performing the role.
2. For the purposes of section 98 of the Employment Rights Act 1996, the reason for dismissal consists of the facts known to, or beliefs held by, the decision-maker which caused the dismissal. Where several considerations operate, the tribunal must decide which was the principal reason. That is a question of fact and judgment. A prior predisposition to dismiss does not automatically displace a later misconduct reason, and the relevant question is not merely what was necessary in the “but for” sense.
3. The approach in ASLEF v Brady [2006] IRLR 576 was correct. An employer may welcome an opportunity to dismiss while still dismissing for genuine misconduct, but a tribunal may find that misconduct was not the true reason where it was used opportunistically to achieve another objective. Once that issue is properly raised, the employer must establish the statutory reason.
4. The Tribunal’s alternative reasoning was also sustainable. A disciplinary panel that approaches the issue without genuine detachment or open-mindedness may render the dismissal unfair, particularly where the question whether the conduct warrants dismissal involves judgment and evaluation. If the true reason is capability, dismissal following a process directed to different events is likewise unfair.
5. The Employment Appeal Tribunal was not entitled to substitute its own assessment of the evidence. The Tribunal had sufficient grounds to reject the panel chair’s account of her motivation. The possible effect of the appeal hearing did not require determination because the point had not been specifically taken below.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s decision upholding the unfair-dismissal claim was dismissed.
• Employment Tribunal: The Tribunal found that the dismissal was unfair because the stated misconduct reason was a pretext for the prior decision to remove the respondent, and because the disciplinary process was affected by pre-judgment.