Joao v Jurys Hotel Management UK Ltd

For automatic unfair dismissal under Employment Rights Act 1996, the fact that working arrangements are legally permissible does not prevent an employee from reasonably believing that they are harmful or potentially harmful to health and safety. The tribunal must examine the employee’s actual belief and whether there were reasonable grounds for it. It must not infer that no reasonable belief could exist merely because the conduct was lawful. Where the employer changes the reason relied upon for dismissal, the tribunal must make a clear finding on the reason actually relied upon.

The claimant worked night shifts for the respondent hotel company. He was rostered to work nine consecutive nights and raised concerns about health and safety and the legality of the arrangement. He was then dismissed.

The Employment Tribunal dismissed his claim for automatic unfair dismissal under section 100(1)(c) of the Employment Rights Act 1996, finding that nine consecutive nights were lawful under regulation 11 of the Working Time Regulations 1998 and that he therefore could not reasonably believe there was a health and safety breach. The Tribunal also accepted gross misconduct as the reason for dismissal, although the respondent had initially relied on performance. The appeal concerned whether those conclusions involved errors of law.

1. Appeal allowed. The Employment Tribunal’s decision on automatic unfair dismissal was set aside. The claim concerning one week’s notice pay was also to be heard again. The finding on unlawful deduction of wages remained undisturbed.
2. Section 100(1)(c) requires consideration of the employee’s belief and the reasonableness of the grounds for that belief. The Tribunal had focused only on the fact that nine consecutive nights were apparently lawful under regulation 11 of the Working Time Regulations 1998.
3. That approach was an error of law. Legal permissibility does not mean that an employee cannot reasonably believe that the arrangement is unlawful or harmful to health and safety. The Claimant’s concern was evidenced by the manager’s email and required careful investigation.
4. The Tribunal also had to address the respondent’s changing position as to the reason for dismissal. It was required to make a clear finding on the Claimant’s case that the original performance reason had been replaced by an allegation of gross misconduct.
5. The matter was remitted to a differently constituted Employment Tribunal because the errors extended beyond a simple misdirection on section 100(1)(c) and the appellate tribunal could not say that the original decision was unarguably right.

• Employment Appeal Tribunal: allowed the appeal and set aside the Employment Tribunal’s decision on automatic unfair dismissal. The notice-pay issue was remitted, while the unlawful deduction finding remained.
• Employment Tribunal, Watford: dismissed the automatic unfair dismissal and wrongful dismissal claims in Reasons registered on 2 November 2010.