Jafri v Secretary Of State For Justice & Anor

Where an employee is dismissed because a third party’s stance prevents continued employment, unfairness to the employee does not itself make the dismissal unfair. Under section 98(4) of the Employment Rights Act 1996, the question is whether the employer reasonably considered and sought to avoid or mitigate that injustice.

An employer may fairly dismiss if it has taken all reasonable steps to secure the third party’s agreement and to find alternative work, but those steps fail. An employment tribunal’s errors on collateral factual matters will not invalidate its conclusion unless they could realistically have affected that assessment.

The claimant had long worked for Lincoln College at Sudbury Prison. Following allegations by a colleague, the prison governor excluded him from the prison. The College’s disciplinary process did not resolve those allegations because the colleague had left employment. The governor nevertheless maintained the exclusion.

The College attempted to have the exclusion lifted and sought alternative deployment. It dismissed the claimant for some other substantial reason when redeployment proved unavailable. The Employment Tribunal dismissed his whistleblowing and unfair dismissal claims.

On appeal, the claimant pursued only grounds concerning ordinary unfair dismissal. The central issue was whether the Tribunal had properly addressed the injustice caused by dismissal and whether factual errors in its reasons undermined its conclusion that the College had acted reasonably.

1. Appeal dismissed. The Employment Tribunal was entitled to hold that dismissal was fair. The relevant question under section 98(4) of the Employment Rights Act 1996 was whether the College had acted reasonably, not whether the governor’s stance had caused the claimant an injustice.

2. Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 required careful consideration of the injustice which dismissal would cause the employee. Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466 made clear that, where a third party’s position causes that injustice, a dismissal may nevertheless be fair if the employer has done all it reasonably can to avoid or mitigate it, including seeking a change of position and alternative work.

3. The Tribunal had sufficiently found that the College appreciated the injustice of dismissing the claimant. Although the dismissal meeting and letter did not expressly refer to it, the Tribunal could infer that the College recognised the obvious injustice of dismissal following unsubstantiated allegations. In any event, the College had tried to persuade the governor to lift the exclusion and had sought redeployment.

4. The Tribunal had wrongly made findings on whether the colleague’s allegations were true. That issue was not necessary to determine the fairness of dismissal. It had also made errors concerning a separate grievance and an email. None could realistically have affected the conclusion that the College had no further practical step available to secure the claimant’s return or alternative employment.

5. The governor would not permit a return unless the allegations were resolved in the claimant’s favour. They could not be substantiated or rejected after the complainant left. It was open to the Tribunal to regard a further request to the governor as futile. Its conclusion fell within the range of reasonable responses.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the rejection of his ordinary unfair dismissal claim.
• Employment Tribunal: dismissed the claimant’s whistleblowing and unfair dismissal claims. No citation for its decision was stated in the judgment.