Royal Bank Of Scotland v Donaghay

For the purposes of Employment Rights Act 1996, s.98(2), conduct need not be reprehensible. Any act or omission may constitute conduct, leaving the tribunal to decide fairness under s.98(4).

Fairness is assessed objectively. Tribunals must not substitute their own view for that of the employer. There are no universal procedural rules requiring disclosure of witness statements or repeated questioning of witnesses, provided the employee knows the essence of the case and has a fair opportunity to respond. A tribunal must also address s.98A(2) where procedural defects are alleged.

In discrimination claims, a comparator must be appropriate and materially comparable. A difference in status and treatment, or a hypothesis of stereotyping, is insufficient without evidence from which discrimination could properly be inferred.

The Royal Bank of Scotland dismissed an employee after a domestic incident involving another employee with whom he had been in a relationship. The employer relied on his admitted physical conduct, the surrounding disturbance, his conviction for domestic breach of the peace and his attendance at the other employee’s workplace.

An Employment Tribunal found unfair dismissal and sex discrimination. It considered that conduct had to be reprehensible, identified procedural deficiencies, treated the other employee as a comparator and inferred possible sexist stereotyping.

The Employment Appeal Tribunal considered whether the dismissal was for a potentially fair conduct reason, whether the procedure was fair or cured by the appeal process, whether s.98A(2) applied, and whether the comparator and evidential basis for the discrimination claim were legally sufficient.

1. Unfair dismissal. The appeal was upheld and the unfair-dismissal claim dismissed. The Tribunal misdirected itself by requiring conduct under s.98(2) of the Employment Rights Act 1996 to be reprehensible. Anything an employee does or fails to do may constitute conduct. Its character is relevant to fairness under s.98(4), but reprehensibility is not a precondition to establishing a potentially fair reason.
2. The employer was entitled to consider the employee’s conduct as a whole. The relevant decision-makers had considered the admitted physical conduct, the disturbance, the domestic breach-of-peace conviction, the workplace attendance and the perceived risk to staff and property. The Tribunal wrongly focussed on the assault alone and treated the self-defence explanation as preventing a finding of culpability.
3. Procedural fairness does not impose rigid requirements. The employee must have fair notice of the case and a reasonable opportunity to answer it, but there is no universal requirement to provide witness statements or to shuttle repeatedly between an employee and witnesses. The Tribunal identified no material prejudice from the matters criticised. The appeal hearing also gave the employee a full opportunity to state his case and provided clear reasons for upholding dismissal.
4. The Tribunal wholly failed to consider Employment Rights Act 1996, s.98A(2). On the facts, it could only have concluded that the employee would still have been dismissed had the suggested procedural steps been taken.
5. Sex discrimination. The other employee was not an appropriate comparator because the differences between the parties were relevant and substantial. In any event, the Tribunal adopted the wrong burden-of-proof approach. The burden could not pass to the employer merely because a sexist hypothesis was possible. There had to be facts from which a reasonable tribunal could properly infer discrimination, considering the whole evidence. The failure to put the employee’s account to the other employee was insufficient.
6. The claims were dismissed in their entirety.

• Employment Appeal Tribunal: upheld the employer’s appeal and dismissed the claimant’s unfair-dismissal and sex-discrimination claims.
• Employment Tribunal, Glasgow: found that the claimant had been unfairly dismissed and discriminated against contrary to the Sex Discrimination Act 1975.