HCL Safety Ltd v Flaherty (Unfair Dismissal)

In an unfair-dismissal case, once the employer has established the reason for dismissal, there is no further burden upon it to prove that dismissal was fair. The tribunal must determine fairness in all the circumstances.

Procedural shortcomings do not necessarily make a dismissal unfair. Their significance depends on whether they could have affected the outcome and on whether a fair appeal cured them. Where serious misconduct is admitted, no material explanation could alter the result, and dismissal falls within the range of reasonable responses, procedural defects may be immaterial.

The claimant, an experienced employee installing height-safety systems, was summarily dismissed after he and colleagues worked on a roof without harnesses or restraint. He admitted acting contrary to his employer's instructions, the client's zero-tolerance policy and applicable safety regulations.

The Employment Tribunal held that dismissal was substantively within the range of reasonable responses but found it unfair because of defects in the disciplinary process. It made no monetary award because it found 100% contributory fault. The employer appealed, contending that the Tribunal had wrongly placed on it the burden of proving overall fairness and had treated procedural imperfections in isolation.

1. Appeal allowed. The Employment Tribunal erred in law by treating the employer as bearing the burden of proving that dismissal was reasonable overall. Once the reason for dismissal has been established, fairness is assessed under Employment Rights Act 1996 section 98 without such a burden.

2. The Tribunal's own findings established admitted and flagrant misconduct. The claimant knowingly worked without restraint despite training, express instructions, the client's policy and statutory safety requirements. His explanation that the prescribed method was impractical could and should have been raised with management before he chose to work unrestrained.

3. The procedural defects could not have affected the result. There was nothing the claimant could have said at the disciplinary hearing about the admitted misconduct that would have made a difference. In any event, at the appeal he had the full papers and an opportunity to present his explanation, so any deficiencies in the first hearing were cured.

4. Management's prior recognition that dismissal was likely did not establish closed minds. Given the seriousness and likely reputational consequences of the safety breach, it was legitimate for management to treat the incident as an urgent and serious matter.

5. There were sufficient findings of fact for the Appeal Tribunal to substitute the conclusion that the dismissal was fair.

• Employment Appeal Tribunal: allowed the employer's appeal and substituted a finding that the dismissal was fair.
• Employment Tribunal: found the dismissal unfair but made no basic or compensatory award because of the claimant's 100% contributory conduct.