Kelly v Fylde Community Link Ltd

An Employment Tribunal must give reasons sufficient to show why each material basis of an unfair-dismissal claim has failed. Where the reason or principal reason for dismissal is disputed, the Tribunal must identify the reason it finds and address its statutory characterisation under Employment Rights Act 1996.

It must also determine an expressly advanced automatic-unfair-dismissal case and a material challenge to the fairness of dismissal. A conclusion that dismissal was fair, without addressing those issues, is inadequate. Where the reasons reveal that the Tribunal has already formed a fixed view of the proper outcome, remission should be to a fresh Tribunal.

The claimant was dismissed after refusing a proposed four per cent reduction in pay. Other employees accepted the reduction. Before her dismissal, she had brought an Employment Tribunal claim alleging unlawful deductions from wages, including the reduction.

She claimed that her dismissal was automatically unfair because she had asserted a statutory right, or alternatively was ordinarily unfair because savings could have been made by other means. The Manchester Employment Tribunal dismissed the claim on 6 January 2012.

On appeal, the claimant challenged the adequacy of the Tribunal’s reasons. She also appealed the Registrar’s refusal of permission to amend her Notice of Appeal.

1. The substantive appeal was allowed. The Employment Tribunal’s decision was set aside because its reasons did not enable the claimant to know why either basis of her claim had failed.

2. The reason or principal reason for dismissal was central and contested. The employer said that dismissal followed the claimant’s refusal to accept reduced contractual terms. The claimant said that it was caused, wholly or partly, by her earlier unlawful-deduction claim. The Tribunal had to identify the reason it found. If the reason was refusal of new terms, it also had to address whether that was conduct under section 98(2) or some other substantial reason under section 98(1)(b) of the Employment Rights Act 1996.

3. The Tribunal had not addressed the automatic-unfair-dismissal claim under section 104 of the Employment Rights Act 1996. It neither identified the relevant limb of that provision nor explained why that claim was rejected.

4. The Tribunal also failed to address the claimant’s material ordinary-unfair-dismissal contention that, even if expenditure savings were a potentially substantial reason, dismissal was unfair because savings could have been achieved otherwise. Its short conclusion that dismissal was fair did not supply the necessary reasoning.

5. The appeal against the Registrar’s order was allowed in part. The proposed burden-of-proof ground was late, unexplained, new and not reasonably arguable, so permission was refused. The proposed Meek reasons ground was substantially the same as the original appeal, caused no prejudice, and was allowed as a true amendment. The unfair-dismissal claim was remitted to a fresh Employment Tribunal because the original Tribunal’s reasons showed that it had already reached a firm view of the outcome.

• Employment Appeal Tribunal: allowed the substantive appeal, set aside the dismissal of the unfair-dismissal claim, and remitted it to a fresh Employment Tribunal. It also allowed the appeal from the Registrar’s amendment decision in part.
• Employment Tribunal at Manchester: unanimously dismissed the claimant’s unfair-dismissal claim following a hearing on 6 January 2012.