Westminster City Council v Sohal

In an appeal under Employment Rights Act 1996, section 98(4), the Employment Appeal Tribunal must respect the Employment Tribunal’s evaluative judgment and may intervene only for an error of law. Fairness is assessed at the date of dismissal.

An ill-health dismissal may be unfair where the decision-maker also relies on perceived performance concerns which have not been disclosed to the employee or put to them for response. A subsequent internal appeal does not cure that unfairness. Authorities concerning an employee who remains absent with no prospect of return do not govern a case where the employee has returned to work and is medically fit.

The claimant, a long-serving finance officer, was dismissed for capability on 17 August 2010 following sickness absence and a sickness review process. She also had perceived performance difficulties, which were being addressed under a separate procedure.

The Employment Tribunal rejected her protected-disclosure claim under section 103A of the Employment Rights Act 1996. It accepted capability as the employer’s reason for dismissal, but held the dismissal unfair under section 98(4). It found procedural confusion and, importantly, that the dismissing officer had materially relied on perceived under-performance without giving the claimant an opportunity to answer it.

The Council appealed the liability decision, alleging perversity, misapplication of ill-health dismissal authorities, and procedural unfairness by the Tribunal itself.

1. Appeal dismissed. The Employment Tribunal’s factual findings were permissible on the evidence. The Employment Appeal Tribunal could not retry the facts or substitute its own assessment for the Tribunal’s conclusion under section 98(4) of the Employment Rights Act 1996.

2. Fairness had to be judged at the date of dismissal. The Tribunal was entitled to find that the dismissing officer’s reason extended beyond the claimant’s sickness record and the risk of recurrence. It also included her perception of the claimant’s performance and its effect on colleagues and the business.

3. Those performance concerns were at an early procedural stage. The claimant had not been told that they would inform the dismissal decision and had not been given an opportunity to respond. That was capable of, and on the Tribunal’s findings plainly did, place the dismissal outside the range of reasonable responses. The employer’s internal appeal did not cure the defect, particularly as the performance perception also affected its view of redeployment.

4. Spencer v Paragon Wallpapers Ltd [1976] IRLR 373 and McAdie v RBS plc [2007] IRLR 895 did not assist the employer. Unlike the employees in the relevant ill-health scenarios, this claimant had returned to work, had been certified fit, and was not dismissed solely for ill-health.

5. Even assuming that the Tribunal should have alerted the employer to its finding about the full reason for dismissal, that procedural error would not require the decision to be set aside where the result was plainly and unarguably right. The Tribunal had properly confined its unfairness finding to liability at dismissal. The separate Polkey question remained for the remedy hearing and was not affected by this appeal.

• Employment Appeal Tribunal: Appeal dismissed: [2012] UKEAT 0637_11_0106.
• Employment Tribunal (London Central): On 20 September 2011, rejected the protected-disclosure claim, found capability was the reason for dismissal, and held the dismissal unfair under section 98(4) of the Employment Rights Act 1996. Remedy, including the Polkey issue, was adjourned.