Matinpour v Rotherham Metropolitan Borough Council

An employment tribunal on a limited remission may reconsider only the matters within the appellate order. Findings that were open to challenge in the first appeal, but were neither appealed nor remitted, cannot be reopened merely because the tribunal gives fuller reasons on reconsideration.

In assessing the fairness of a capability dismissal, an employer need consider ill-health retirement only where the information available at the time gives a real reason to think that the employee is, or may be, eligible. The assessment must focus on the employer’s contemporaneous knowledge. A later event cannot retrospectively render the dismissal unreasonable.

The claimant, a council technician absent from work with stress, brought complaints including disability discrimination, failure to make reasonable adjustments and unfair dismissal. An Employment Tribunal dismissed the claims in 2011.

On a first appeal, the Employment Appeal Tribunal allowed three grounds and remitted specified matters to the same Tribunal for reconsideration. It had expressly excluded challenges to findings about two alleged provisions, criteria or practices (“PCPs”). The Tribunal gave fuller reasons in 2012 but reached the same overall conclusions.

The claimant’s second appeal challenged the repeated PCP findings and the Tribunal’s treatment of ill-health retirement when assessing the fairness of his capability dismissal. The central issues were the scope of the remission and whether the employer should have delayed dismissal to investigate ill-health retirement.

1. Appeal dismissed. Grounds 1 to 3 were outside the permitted scope of the remission. The first Tribunal had found that the employer had not applied two of the alleged PCPs. Those findings were not challenged in the first appeal and were expressly not remitted. The remitted Tribunal could not revisit them or reach different conclusions.

2. The wider language of the remission order did not reopen every factual finding. It required reconsideration of the specified appeal grounds in light of the earlier EAT judgment. In any event, finality in litigation required the claimant to advance, in the first appeal, challenges to findings which he then wished to contest.

3. Ground 4 was within the broad remission concerning unfair dismissal. The Tribunal had wrongly stated that the employer in First West Yorkshire Ltd (t/a First Leeds) v Haigh was contractually required to consider ill-health retirement. That error was immaterial.

4. The relevant question was whether, on the information available at dismissal, the employer had reason to think that the claimant might be eligible for ill-health retirement. There was medical evidence that he might return to work in the appropriate circumstances, no medical opinion suggesting permanent incapacity, and the claimant had indicated a possible return within months. It was therefore reasonable not to postpone dismissal to investigate ill-health retirement. The Tribunal’s reference to the claimant’s later fitness for work was impermissibly retrospective, but its alternative contemporaneous reasoning independently sustained the conclusion under section 98(4).

• Employment Appeal Tribunal (current appeal): dismissed the claimant’s appeal from the remitted Tribunal decision.
• Employment Tribunal (on remission): in reasons delivered on 17 July 2012, reached the same overall conclusions after reconsideration.
• Employment Appeal Tribunal (first appeal): on 28 November 2011, allowed grounds 1, 2 and 3 and remitted those matters to the same Tribunal; it did not remit the PCP findings now challenged.
• Employment Tribunal: dismissed the claimant’s complaints in a judgment delivered on 28 April 2011.