O'Hanlon v Post Office Ltd (Unfair Dismissal)

In deciding fairness, an Employment Tribunal must assess the employer’s actual reason for dismissal. It may not remove an unproved or procedurally unfair element from a composite reason and then uphold the dismissal on the remaining allegation alone.

Where previous alleged misconduct forms part of the employer’s decision because it is said to show a likelihood of recurrence, the employee must have a proper opportunity to answer it. A dismissal relying on such matters is unfair if the employer lacked a genuine and reasonable belief in them after a proper investigation.

The claimant was dismissed after an incident in which he used abusive language to a customer and left work. During the disciplinary and appeal processes, the employer also considered earlier alleged incidents involving a trolley and fridge labels. Those matters were said to support a conclusion that the claimant’s conduct would recur.

The Employment Tribunal found that the earlier matters had formed part of the decision-making process, but that they had not been properly investigated or put to the claimant. It nevertheless upheld the dismissal on the basis of the incident on 30 December 2009 alone. The claimant appealed against that conclusion.

The central issue was whether the Tribunal could treat the dismissal as fair by separating the established allegation from the wider, composite reason actually relied on by the employer.

1. Appeal allowed. The Employment Tribunal erred in law by substituting its own reason for dismissal for the employer’s actual reason.

2. The Tribunal had found that the employer dismissed for gross misconduct comprising both the incident of 30 December 2009 and earlier alleged conduct. The earlier conduct was material because it was relied on to conclude that misconduct was likely to recur and that dismissal was an appropriate sanction.

3. The Tribunal also found that the employer could not have held a genuine and reasonable belief in the earlier allegations following a proper investigation. The claimant had not been given a proper opportunity to answer them. Those findings meant that the employer could not properly rely on that part of its composite reason.

4. The Tribunal could not cure that defect by excising the earlier allegations and treating the incident of 30 December as the sole reason for dismissal. The fairness exercise under section 98(4) required assessment of the employer’s actual decision-making process, including the appeal process as a whole.

5. The Employment Appeal Tribunal substituted a finding of unfair dismissal. Remedy, including any Polkey reduction, contributory fault and quantum, was remitted to the same Employment Tribunal if practicable.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and substituted a finding of unfair dismissal: [2012] UKEAT 0202_12_1510.
• Employment Tribunal: Held that the claimant had been fairly dismissed following hearings at East London in September and December 2011. Its decision was set aside on liability.