London Central Bus Company Ltd v Manning

A procedural defect in a dismissal or internal appeal does not of itself make a dismissal unfair under section 98(4) of the Employment Rights Act 1996. The question is whether the defect denied the employee a real opportunity to show that the employer’s stated reason was insufficient.

Where an appeal omitted to show an employee a list of vacancies which the tribunal had found unsuitable, the omission could not affect the fairness of an otherwise fair capability dismissal. It was futile and could not justify a finding of unfair dismissal.

The employee, a bus driver with 23 years’ service, was dismissed on ill-health capability grounds after being unable to drive because of numbness in both feet. The Employment Tribunal found the original dismissal fair, but held the dismissal unfair because, at the internal appeal, the employer had not shown him a list of alternative vacancies. It found that none of those vacancies was suitable.

The employer appealed from the Tribunal’s liability judgment, promulgated on 5 November 2012. The central issue was whether that procedural omission at the appeal stage could render the otherwise fair dismissal unfair.

1. Appeal allowed. The Employment Appeal Tribunal set aside the finding of unfair dismissal, substituted a finding that the dismissal was fair, and set aside the basic award of £10,000.

2. Under section 98(4) of the Employment Rights Act 1996, a procedural defect at either the dismissal or internal appeal stage does not by itself establish unfair dismissal. Applying Taylor v OCS Group Limited [2006] IRLR 613, the Tribunal had to assess overall fairness.

3. The relevant inquiry, formulated in Westminster City Council v Cabaj [1996] IRLR 399 by reference to Tipton v West Midlands Co-operative Society Ltd [1986] IRLR 112 and Polkey v A E Dayton Services Limited [1987] IRLR 503, was whether the procedural defect denied the employee an opportunity to show that capability was an insufficient reason for dismissal.

4. The Tribunal’s own findings meant that the employee could not perform any vacancy on the omitted list. Showing him that list at the appeal would therefore have been futile. The omission did not deny him a material opportunity, could not displace the fairness of the original dismissal, and could not make the appeal outcome or dismissal unfair.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a finding of fair dismissal: [2013] UKEAT 0103_13_1112.
• Employment Tribunal (London South): upheld the employee’s unfair dismissal complaint in a liability judgment promulgated on 5 November 2012. It later awarded a basic award but no compensatory award. No citation was stated.