Mulligan v University of Edinburgh

An Employment Tribunal is ordinarily required to determine the issues and arguments clearly presented by the parties. It does not err by failing to decide a different case suggested only by documents or raised for the first time on appeal.

Under Employment Rights Act 1996, section 98(4), dismissal fairness is an evaluative question, not one on which either party bears a burden of proof. The employer bears the burden of showing the reason for dismissal. A Tribunal need not itself investigate redeployment or the employer’s size and resources where that issue was not advanced, provided its reasons and findings adequately explain why dismissal fell within the band of reasonable responses.

The Claimant, a part-time security officer, brought claims concerning part-time worker treatment, holiday leave when sick, and unfair dismissal. The Employment Tribunal dismissed the claims, finding that he had been dismissed for some other substantial reason, namely an irretrievable loss of trust and confidence.

Following a sift and a Rule 3(10) hearing, three grounds proceeded to this appeal: whether the Tribunal had misunderstood the relevant shift pattern; whether it had confused successive annual-leave policies; and whether it should have considered redeployment when assessing dismissal under section 98(4) of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal had determined the part-time-worker issue which had been repeatedly identified at preliminary hearings and agreed at the merits hearing. The later shift pattern was referred to in productions, but was not clearly advanced as a separate issue. An Employment Tribunal could not be faulted for deciding the defined issue rather than an unarticulated alternative case. It was too late to introduce that case on appeal.
2. The Tribunal had not confused the annual-leave policy in force with its later wording. It read the applicable policy with the absence-management policy and the manager’s memorandum. On that material it was entitled to find that sickness during annual leave had to be reported at the earliest opportunity, ordinarily by the time work would have begun. Regulation 17 of the Working Time Regulations 1998 added nothing to the argument advanced.
3. Section 98(4) requires an assessment of fairness in all the circumstances, including the employer’s size and administrative resources, and in accordance with equity and the substantial merits. It does not place a burden on either party to prove fairness or unfairness; the employer’s statutory burden is to show the reason for dismissal.
4. The Tribunal had found that the employer considered alternatives to dismissal and reasonably concluded that none was viable because the Claimant would not acknowledge fault or modify his conduct. Although its reasons could have been fuller, they adequately explained why dismissal was within the band of reasonable responses. It was not required, on the facts and issues presented, to raise redeployment for itself or to give further detail of alternatives.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s decision.
• Employment Tribunal, Edinburgh: dismissed the Claimant’s unfair-dismissal, part-time-worker and relevant annual-leave claims in reasons dated 2 April 2013.