Ministry of Justice v Parry

(1) Appeal allowed. The Employment Tribunal's decision was unsafe and is remitted for rehearing before a fresh Tribunal. The primary factual basis relied on by the Tribunal (that an assurance had been given that the claimant would not be dismissed) lacked any evidential foundation, making the decision unsound (see paras [12]–[15]; [54]–[57]). (2) Article 6: Article 6 applies where the disciplinary proceedings are dispositive of a civil right or are so closely linked to another proceeding that they cause irreversible prejudice. A tribunal must have evidence about the nature and effect of any external "list" or regulatory consequence before deciding that Article 6 applies (see paras [18]–[21]; [29]–[33]). The mere practical effect of dismissal on future employability does not by itself establish an Article 6 right without evidence of a legal bar (see paras [22]–[25]; [33]). (3) Even where Article 6 is engaged, its absence will not inevitably make a dismissal unfair. The tribunal must consider overall fairness under section 98 ERA and may in rare cases conclude that the lack of representation does not change the overall conclusion (paras [34]–[37]; [37]). (4) Polkey: The correct exercise for a Polkey deduction is to assess the percentage chance that, had a fair procedure been followed, dismissal would still have occurred. It is a measure of chance across a spectrum and not a balance-of-probabilities yes/no test. The Leeds Tribunal applied the wrong legal test in treating the issue as one of balance of probabilities (paras [41]–[45]). (5) Closed mind and evidence: A tribunal must ground adverse findings about investigatory or appeal officers on evidence. The Leeds Tribunal made unsupported factual assumptions about assurances and appeal conclusiveness which rendered its reasoning unsafe (paras [12]; [33]; [38]–[40]). (6) Contractual dismissal/wrongful dismissal and the "last straw": Conventional contractual principles apply. The conduct of the employee must be considered cumulatively. A final written warning means subsequent misconduct within its life will normally be treated as indicating a repudiatory refusal to perform the contract, subject to exceptional circumstances. The Tribunal erred in divorcing the misconduct of 24 June from its context (paras [48]–[53]). (7) Disposition: Appeal allowed. Matter remitted for complete rehearing before a fresh Tribunal. The EAT declined to substitute findings on the facts given the absence of material about the Lord Chancellor's list and the procedural steps before the Crown (paras [55]–[57]).