Tansell v Henley College Coventry

Where a fixed-term contract expires without renewal, its expiry is the statutory mechanism of dismissal. It is not, without more, the employer’s reason for dismissal. In an unfair-dismissal claim, the employer must prove the actual reason under section 98(1) of the Employment Rights Act 1996, and the tribunal must identify that reason and decide whether it is potentially fair under section 98(2).

A tribunal which dismisses an unfair-dismissal claim must give clear reasons showing those findings. It cannot elide expiry of a fixed term with the statutory reason for dismissal.

The claimant was employed by the respondent college on successive academic-year fixed-term contracts. His final contract expired on 16 July 2010 and was not renewed. He alleged that the non-renewal was unfair, automatically unfair for making protected disclosures, and discriminatory on grounds of disability.

The Employment Tribunal dismissed those claims. It held that dismissal was by reason of expiry of the fixed term and that the process was legitimate and fair. The claimant appealed, contending that the Tribunal had confused the fact and mechanism of dismissal with the employer’s reason for it.

1. Appeal allowed. The Employment Tribunal erred in law by failing to identify the employer’s actual reason for dismissal. Expiry without renewal of a limited-term contract constituted a dismissal under section 95(1) of the Employment Rights Act 1996. It did not itself answer the separate statutory question of why the employer dismissed the employee.

2. Under section 98(1), where dismissal is admitted, the employer bears the burden of proving its reason. The tribunal must decide whether that burden has been met. Under section 98(2), it must then decide whether the proved reason is a listed potentially fair reason or some other substantial reason.

3. A tribunal dismissing an unfair-dismissal complaint must state that it finds the employer has proved a reason, identify that reason, and state that it is statutorily capable of being fair. The finding should be plainly apparent from the reasons. The Tribunal had instead elided the mode of dismissal, namely expiry of the fixed term without renewal, with the reason for it.

4. The respondent’s invitation to infer a finding of redundancy was rejected. The Tribunal had neither expressly accepted redundancy, set out the statutory definition, nor applied it to find a genuine redundancy. Its omission of redundancy from its recital of section 98(2) reinforced that conclusion.

5. The unfair-dismissal, protected-disclosure automatic-unfair-dismissal, and dismissal-related disability-discrimination claims were remitted to a freshly constituted Tribunal. The claimant did not pursue the victimisation, reasonable-adjustments, or wrongful-dismissal claims; they stood dismissed.

• Employment Appeal Tribunal: appeal allowed. The unfair-dismissal, automatic-unfair-dismissal and dismissal-related disability-discrimination claims were remitted to a fresh Tribunal.
• Employment Tribunal, Birmingham: on 23 January 2012, dismissed the claimant’s claims, including unfair dismissal.