Kisoka v Ratnpinyotip (trading as Rydevale Day Nursery)

Section 98(4) of the Employment Rights Act 1996 does not require an employer to follow an appeal panel’s decision in every case, or only to depart from it in exceptional circumstances. The fairness of a dismissal must be assessed by considering the disciplinary and appeal process as a whole, including the employer’s size and resources, the seriousness of the alleged misconduct, and whether the employee had a genuine opportunity to make representations. There is no fixed rule that a failure to follow an appeal decision, or a lack of complete independence at the appeal stage, automatically makes a dismissal unfair. A procedural defect may affect the finding of unfairness, but the likely outcome of a fair procedure is principally relevant to remedy.

The Employment Tribunal dismissed a claim of unfair dismissal arising from the claimant’s dismissal for alleged gross misconduct after a suspected fire at a nursery. An independent appeal panel overturned the dismissal, but the employer declined to implement that decision after considering further information and the panel’s reasons.

The claimant appealed, arguing that the employer was bound to follow the panel’s decision unless exceptional circumstances existed, and that refusing to do so deprived her of an effective appeal. The central issue was whether the Employment Tribunal had erred in applying the statutory test of reasonableness to the disciplinary and appeal process.

1. Appeal dismissed. The Employment Tribunal had correctly applied section 98(4) of the Employment Rights Act 1996 and was entitled to conclude that the dismissal was fair.
2. There was no basis for adding a requirement that an employer must follow an appeal panel’s decision unless exceptional circumstances or a very good reason existed. Such a gloss would distract from Parliament’s statutory test and create unhelpful satellite disputes.
3. The correct approach is to assess the fairness of the whole disciplinary process, including the appeal, in the circumstances of the individual case. The distinction between a rehearing and a review is not a separate legal test. The seriousness of the misconduct and the procedural features must be considered together.
4. The denial of, or failure fairly to conduct, an appeal can render a dismissal unfair because it may deprive the employee of an opportunity to advance matters capable of affecting the result. It does not do so automatically. Whether the defect affected the substantive finding of unfairness is distinct from the hypothetical question whether a fair procedure would have produced the same outcome, which is relevant principally to compensation.
5. There was no fixed rule requiring a further independent appeal after the employer declined to follow the panel. The Employment Tribunal could take account of the employer’s small size, limited resources, responsibility for children’s welfare, investigation of further information, and good-faith attempt to use an independent panel. The employer’s procedure was not shown to be legally inadequate or overall unfair.

• Employment Appeal Tribunal: appeal against the Employment Tribunal’s judgment promulgated on 18 March 2013 dismissed. The finding that the dismissal was fair was upheld.