Masson v Meggitt Avionics Ltd

Following the repeal of section 98A, the former statutory dismissal procedure continues to apply only if the conditions in the transitional Order are met. An employer must, by the relevant date, have contemplated dismissal or disciplinary action and have taken qualifying relevant disciplinary action, or satisfied the alternative meeting conditions.

A capability-review procedure is not itself disciplinary action. Nor is a warning, or an ordinary performance-based pay decision made under a contractual salary-review policy, qualifying disciplinary action. In assessing capability dismissal, a tribunal may rely on an adopted witness statement where it supplies adequate evidential grounds for the employer’s reasonable belief in incapacity.

The claimant, a senior engineer in the safety-critical avionics industry, was dismissed for alleged shortcomings in capability after a three-stage performance process. His unfair-dismissal claim was originally dismissed.

On an earlier appeal, the Employment Appeal Tribunal remitted the case for determination of the transitional applicability of section 98A of the Employment Rights Act 1996, compliance with that provision if applicable, and whether the employer had reasonable grounds for its belief in the claimant’s lack of capability.

On remission, the Employment Tribunal held that section 98A did not apply and, in any event, that its requirements were met and the employer had reasonable grounds for its belief. The claimant appealed all three findings.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the employer was not contemplating dismissal when it commenced stage one of the capability procedure in February 2009, nor before the failure of stage two. That finding defeated the contention that the transitional provisions preserved section 98A of the Employment Rights Act 1996.

2. The Tribunal’s conclusion was also sustainable on an alternative and conclusive ground. The transitional provisions required relevant disciplinary action, as defined by article 2(1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, by 5 April 2009. The employer had taken none. The February meeting and letter merely warned of possible future consequences if performance did not improve. Warnings are expressly excluded from the definition.

3. The three-stage capability process was a process by which disciplinary action might later be taken; it was not disciplinary action in itself. The claimant’s lack of a salary increase was likewise not disciplinary action. It was the contractual application of a performance-based annual salary-review policy.

4. Although the Tribunal’s reasons for finding reasonable grounds for the employer’s belief in incapability were insufficiently detailed when read alone, it had expressly adopted Mr Evans’s detailed witness statement as true. That statement provided a sufficient basis for the finding. The concerns related principally to leadership performance, not technical competence, and were serious enough to justify dismissal after genuine attempts to secure improvement had failed.

• Employment Appeal Tribunal: An earlier appeal was allowed and remitted to the Employment Tribunal to determine the transitional application of section 98A of the Employment Rights Act 1996, compliance if applicable, and reasonable grounds for belief in lack of capability.
• Employment Tribunal: On remittal, the Tribunal held that section 98A did not apply and that the employer had reasonable grounds to believe the claimant lacked capability. The claim was dismissed. This appeal against those findings was dismissed.