Nejjary v Aramark Ltd

For the purposes of Employment Rights Act 1996 section 98(4), the relevant reason for dismissal is the reason actually operative in the employer’s mind. A tribunal must assess the employer’s decision by reference to that reason. It must not introduce earlier allegations, warnings or other circumstances which the employer did not rely on as a reason for dismissal.

Likewise, a reduction for contributory conduct under section 123(6) requires a causal connection between the employee’s conduct and the dismissal. Conduct and warnings expressly disavowed by the employer cannot be treated as contributing to the dismissal.

The claimant, a hospitality manager, was dismissed for alleged gross misconduct after failures concerning event arrangements. The dismissing officer originally considered three incidents, but the internal appeal officer upheld dismissal solely on a failure to check a booking sheet, described as the Pingerra matter.

The Employment Tribunal held that dismissal for that single incident would ordinarily fall outside the range of reasonable responses. It nevertheless dismissed the unfair-dismissal claim by taking account of earlier capability warnings, although the employer had distanced itself from the claimant’s record. Alternatively, it found 100% contributory fault.

The claimant appealed. The central issues were whether those earlier matters could be used under section 98(4) of the Employment Rights Act 1996, and whether they could support a contributory-fault finding under section 123(6).

1. Appeal allowed unanimously. The unfair-dismissal claim succeeded. The Employment Tribunal had erred in treating prior warnings and their underlying conduct as part of the circumstances which made dismissal reasonable.

2. Under section 98(4) of the Employment Rights Act 1996, the tribunal had to assess the reason actually relied on by the employer. By the end of the internal appeal, that reason was exclusively the Pingerra matter. The dismissal and appeal letters did not rely on earlier matters; the dismissing officer said that his decision was not based on the claimant’s record; and the employer’s response had not advanced those matters as reasons for dismissal.

3. The Tribunal had found that dismissal for the Pingerra matter alone was outside the range of reasonable responses. It could not then add prior capability warnings, which the employer had disavowed, and uphold the dismissal on that substituted or additional basis. That was inconsistent with the statutory focus on the employer’s operative reason.

4. The alternative finding of 100% contribution also erred. Section 123(6) required the Tribunal to confine itself to conduct causally connected with the dismissal. Earlier conduct and warnings had not caused or contributed to this dismissal because they played no part in the employer’s decision. The fact that an appeal against one warning remained outstanding reinforced, but was not the principal basis for, that conclusion.

5. The claim was remitted to the same Employment Tribunal for assessment of remedy.

• Employment Appeal Tribunal: appeal allowed unanimously; the Employment Tribunal’s dismissal of the unfair-dismissal claim was set aside and remedy was remitted.
• London Central Employment Tribunal: dismissed the claim by written reasons dated 24 August 2011. It held dismissal fair under section 98(4) of the Employment Rights Act 1996, or alternatively found 100% contributory fault.