CFS Management Services Ltd v Bashir & Anor

In an unfair-dismissal case based on alleged disparity of treatment, the question under section 98(4) of the Employment Rights Act 1996 is whether dismissal was reasonable and equitable. No higher standard arises because the comparison is expressed in terms of rationality or irrationality; equitable treatment requires even-handed, fair and impartial treatment.

Where an appeal succeeds because the tribunal's decision is perverse and deciding the merits would require a fresh examination of evidence, the appellate tribunal should remit the case rather than substitute its own finding.

The Employment Tribunal, by a majority decision sent to the parties on 11 October 2011, upheld Mr Bashir's and Mr Woodward's unfair-dismissal claims. Its principal basis was that they had received disparate treatment in disciplinary proceedings compared with at least four comparators.

The employer appealed, alleging perversity, legal error and inadequate reasons. During the appeal, it withdrew its argument that a disparity case attracted a higher standard than the ordinary statutory inquiry. The claimants accepted that there was force in the perversity challenge. The central issue became the proper appellate disposal once the decision could not stand.

1. Appeal allowed by consent and remitted. The Employment Appeal Tribunal accepted the parties' joint submission that the Employment Tribunal decision should be set aside and the claims remitted to a freshly constituted tribunal.
2. Under section 98(4) of the Employment Rights Act 1996, there is no legal distinction material to the standard of review between “reasonable” and “unreasonable” and the language of “rational” and “irrational” used in some authorities. A disparity allegation does not require a higher standard. The statutory reference to equity is capable of addressing disparity because it requires even-handed, fair and impartial treatment.
3. The employer conceded that its contrary argument would not be pursued on remittal. The fresh tribunal was therefore to confine its inquiry to the statutory test.
4. Although appellate courts should avoid unnecessary remittals, substitution was inappropriate here. The accepted perversity challenge meant that a proper decision would require examination of evidence unavailable to the Appeal Tribunal. The case was consequently remitted for a complete rehearing before a differently constituted tribunal.

• Employment Appeal Tribunal: Appeal allowed by consent and remitted for a fresh hearing before a differently constituted Employment Tribunal.
• Employment Tribunal: Majority judgment sent on 11 October 2011 upheld the respondents' unfair-dismissal claims on a disparity-of-treatment basis.