Jefferson (Commercial) LLP v Westgate

Under Employment Rights Act 1996, section 98(4), fairness depends on the circumstances and substantial merits of the individual dismissal. There is no absolute requirement for a further meeting, discussion or formal procedure before a dismissal for some other substantial reason can be fair.

A tribunal must identify what a further procedure could fairly achieve. It is an error to find dismissal necessarily unfair merely because no further meeting occurred. Where the findings establish an irreparable mutual breakdown of trust and confidence and the employee has made clear that return to work is not an option, a further meeting may be pointless.

The employer dismissed its surveyor after a meeting at which he maintained that he would not return to work and that his relationship with the employer had broken down. The employer concluded that mutual trust and confidence had irretrievably broken down.

The Employment Tribunal found that the dismissal was for some other substantial reason but unfair. It considered that, without a further meeting or discussion and compliance with the ACAS Code, the dismissal could not be fair.

The employer appealed. The central issue was whether section 98(4) of the Employment Rights Act 1996 required a further meeting or formal procedure in the circumstances found by the Tribunal.

1. Appeal allowed. The Employment Tribunal erred in law by treating the absence of a further meeting or discussion as necessarily rendering the dismissal unfair. The governing question was that prescribed by section 98(4) of the Employment Rights Act 1996: whether, in all the circumstances, the employer acted reasonably in treating the established reason as sufficient for dismissal.

2. Section 98(4) does not impose a uniform procedural requirement. Further meetings will often be relevant to fairness, but their necessity depends on the circumstances. A tribunal must consider the useful purpose which further procedure could serve; fairness does not require a meaningless procedural exercise.

3. The Tribunal had found a mutual, complete and irreparable breakdown of trust and confidence. The employee had already stated that he would not return to work and had lost confidence in the employer. On those findings, a further meeting could only have restated an entrenched position and could have achieved nothing of value.

4. The ACAS Code of 2009 did not address this dismissal for some other substantial reason. Ezsias also reflected that there is no absolute requirement for a hearing whenever an employer identifies a reason for dismissal.

5. The EAT substituted a finding that the dismissal was fair. Compensation therefore did not arise.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted a finding that the dismissal was fair: [2012] UKEAT 0128_12_1907.
• Employment Tribunal, Bury St Edmunds: In reasons dated 23 November 2011, found that the employee had been dismissed for some other substantial reason but that the dismissal was unfair.