John‑Lewis v PJH Group Ltd

An employer cannot make an otherwise procedurally unfair dismissal fair by offering an appeal which would not be meaningful or result in reinstatement. The tribunal must assess the fairness of the dismissal process itself.

Nor may a tribunal conclude that a proper procedure would have made no difference, or that an employee contributed wholly to dismissal, where a fair hearing might have established that the absence was authorised or that summary dismissal was inappropriate. The prospect that employment might later have ended through redundancy does not answer those questions, since the consequences differ.

The claimant, a warehouse operative, was dismissed for alleged unauthorised absence after no hearing had been offered or held. The dismissal letter purported to offer an appeal. His appeal was not received, and the depot subsequently closed with redundancies. A later appeal hearing was arranged but did not take place.

The Employment Tribunal dismissed claims for unfair dismissal and disability discrimination. It held that the appeal would not have been meaningful because the depot had closed and the relevant managers had left. It also found that a correct procedure would have made no difference and that the claimant had contributed 100% to any dismissal. The claimant appealed against the unfair-dismissal decision and the treatment of the disability-discrimination claim.

1. Appeal allowed. The finding that the dismissal was fair was set aside and the unfair-dismissal claim was remitted to a differently constituted Employment Tribunal.

2. The Tribunal had made an elementary error in treating the absence of a meaningful appeal, or the unavailability of reinstatement after the depot closure, as capable of making the dismissal procedure fair. No hearing of any kind had been offered or held before the summary dismissal. An appeal which would not be meaningful cannot cure an otherwise unfair dismissal: [7].

3. The Tribunal also erred in finding that a correct procedure would have made no difference and that the claimant had contributed wholly to his dismissal. A fair hearing might have shown that the absence was not unauthorised, or that summary dismissal was not appropriate. Even if the claimant might later have lost his employment through redundancy, that would have had materially different consequences from instant dismissal for conduct: [8].

4. The disability-discrimination claim was also restored for rehearing. The Tribunal had declined to determine it because of its findings on dismissal, but those findings had been set aside: [10].

5. The rulings dismissing the insufficiently particularised claims for unlawful deductions, breach of contract, notice pay and holiday pay were not challenged. They could not be revived on this appeal: [11].

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the rejection of the unfair-dismissal claim, and remitted the unfair-dismissal and disability-discrimination claims for rehearing by a different Tribunal: [2013] UKEAT 0079_13_1207.
• Employment Tribunal, Watford: Rejected the claims for unfair dismissal and disability discrimination. Its decision was sent to the parties on 5 October 2012.