Devon & Cornwall Police and Crime Commissioner v Weavin

Under Employment Rights Act 1996, section 98 requires the tribunal to assess the employer’s actual reason for dismissal: the facts or beliefs operating on its mind. Where that reason comprises several independent matters, procedural shortcomings concerning only one matter do not establish unfair dismissal if another sufficient capability or qualifications reason remains.

The loss of essential external accreditation may itself provide a potentially fair reason where the employee cannot perform the role and no suitable alternative employment exists. An appellate tribunal may substitute dismissal of an unfair-dismissal claim where the tribunal’s findings permit only that conclusion.

The claimant was employed as an accredited financial investigator. His employer considered that his investigative performance was inadequate. The independent National Policing Improvement Agency subsequently removed his accreditation, which was necessary for the role. It was common ground that no suitable alternative employment was available.

The Employment Tribunal found capability to be the potentially fair reason for dismissal. It nevertheless upheld the unfair-dismissal claim because the employer had not considered evidence favourable to the claimant and its decision-makers lacked relevant expertise. It held that a fair dismissal would in any event have been inevitable and limited compensation to the basic award.

The employer appealed. The central issue was whether the identified procedural defects made the dismissal unfair when the employer’s reason also included the loss of essential accreditation and the absence of redeployment.

1. Appeal allowed. The Employment Appeal Tribunal substituted a declaration that the unfair-dismissal claim failed and was dismissed.

2. The Employment Tribunal had correctly found that the employer’s reason for dismissal was capability. Properly analysed, however, that reason comprised three connected factors: concerns about performance in the role, removal of the claimant’s NPIA accreditation, and the absence of suitable alternative employment.

3. Under section 98(4) of the Employment Rights Act 1996, the tribunal had to decide whether the employer acted reasonably in treating that reason, namely the relevant facts and beliefs as a whole, as sufficient for dismissal. Its two procedural criticisms concerned only the performance-assessment element. They did not address the independent and insurmountable fact that the claimant no longer held the accreditation required to perform the role.

4. The loss of accreditation, following rejection of the claimant’s own appeal to the independent body, was plainly a potentially fair capability or qualifications reason for dismissal where no suitable alternative post existed. The employer was entitled to pursue performance capability and accreditation as alternative or cumulative bases for dismissal.

5. Applying the guidance in Jafri v Lincoln College and Burrell v Micheldever Tyre Services Ltd, the Tribunal’s findings allowed only one result. The Appeal Tribunal therefore reversed the finding of unfair dismissal rather than remitting the matter.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted dismissal of the unfair-dismissal claim, [2014] UKEAT 0215_14_1311.
• Employment Tribunal: Exeter Employment Tribunal, chaired by Employment Judge Carstairs, upheld the unfair-dismissal complaint but limited compensation to the basic award. Its Reasons were promulgated on 20 February 2014. The whistleblowing claim was dismissed and was not appealed.