First Glasgow Ltd v Robertson

Under section 98(4) of the Employment Rights Act 1996, the fairness of a dismissal must be assessed by reference to the employer’s actual reason for treating the conduct as sufficient reason to dismiss. A tribunal may therefore rely on evidence that a prior warning was not taken into account when assessing whether disparate disciplinary treatment was reasonable.

When considering reinstatement under section 116, there is no presumption that reinstatement is practicable and no onus on the employer to prove the contrary. The tribunal must determine practicability from all the circumstances. It must not rely on unspecified judicial knowledge or any material not raised with the parties, since each party must have a fair opportunity to address it.

A bus driver was summarily dismissed for gross misconduct after twice covering the CCTV camera in his cab. He had a prior final written warning for an unrelated matter. Two other drivers had previously received final written warnings for similar interference with CCTV equipment.

The Glasgow Employment Tribunal, by judgment dated 8 August 2011, held that the dismissal was unfair because of the disparity of treatment. It ordered reinstatement. The employer appealed, contending that the prior warning distinguished the claimant and that the reinstatement order wrongly relied on judicial knowledge of advertised driver vacancies.

The central issues were whether the unfair-dismissal finding was reasonable and whether reinstatement had been lawfully ordered.

1. The appeal was allowed in part. The Employment Appeal Tribunal upheld the finding that the dismissal was unfair, but set aside the remedy provisions and remitted the remedy issue to the same Employment Tribunal.

2. Section 98(4) of the Employment Rights Act 1996 required the Tribunal to consider the employer’s reasons for dismissal. The appeal officer had given evidence, accepted by the Tribunal, that the claimant’s extant final warning had not been taken into account because the CCTV conduct alone was considered sufficient to justify summary dismissal. The Tribunal was entitled to proceed on that actual reasoning. The warning could have provided a proper distinction from the comparators had it been relied upon, but it was not.

3. The reinstatement order was flawed. The Tribunal relied on unspecified judicial knowledge that the employer had advertised bus-driver vacancies, without identifying the advertisements or putting the matter to either party. Fundamental fairness required the Tribunal to raise such material before the hearing ended, so that the parties could give evidence and make submissions about its relevance and accuracy.

4. The Tribunal also incorrectly treated the employer’s failure to lead evidence on practicability as establishing that reinstatement was practicable. Under section 116 of the Employment Rights Act 1996, there is no onus at the order-making stage on the employer to prove impracticability and no statutory presumption of practicability. The Tribunal must decide the issue on the whole circumstances. The absence of compulsory redundancies did not establish that the business was thriving or that reinstatement was practicable.

5. Paragraphs 3, 4, 5 and 7 of the Tribunal’s judgment were set aside. The question whether to order reinstatement, and if not the compensation payable, was remitted for fresh determination.

• Employment Appeal Tribunal: Allowed the employer’s appeal only as to remedy and remitted reinstatement and compensation for fresh determination: [2012] UKEAT 0052_11_2203.
• Employment Tribunal, Glasgow: By judgment dated 8 August 2011, held the dismissal unfair and ordered reinstatement. The remedy order was set aside; the unfair-dismissal finding was upheld.