L v M (Unfair Dismissal: Reasonableness of dismissal)

When deciding fairness under section 98(4) of the Employment Rights Act 1996, an employer’s responsibility for an employee’s incapacity may be a relevant circumstance even where it did not cause the illness. The tribunal must focus on the reasonableness of dismissal at the date of dismissal, having regard to what the employer then knew or ought reasonably to have addressed.

An employer may be required to take additional steps or tolerate further absence where its conduct has aggravated the employee’s condition. Procedural fairness remains an integral part of the statutory assessment. A tribunal may find dismissal unfair where the decision-maker ignores material supplied by the employee, fails to investigate an apparent discrepancy fairly, and proceeds solely by reference to attendance.

The Claimant, a long-serving employee, was absent with reactive depression arising from allegations of harassment made by a third party. The Respondent had investigated several complaints made by that person and found no improper database access by the Claimant. It did not disclose all the relevant material to her.

The Claimant said that the withheld material would assist her in answering the allegations. At an attendance-management meeting before dismissal, she supplied written material and emails. The dismissing officer did not meaningfully consider them, made an unverified assumption about legal proceedings, and dismissed her for sickness absence. The Employment Tribunal upheld her unfair-dismissal claim.

The Respondent appealed, challenging the Tribunal’s reliance on its role in aggravating the illness, its disclosure findings, and its conclusion that the dismissal was procedurally unfair.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that dismissal for absence in January 2011 was unfair. Remedy, including any Polkey reduction, remained for the Employment Tribunal.

2. Under section 98(4) of the Employment Rights Act 1996, the tribunal must assess whether the employer acted reasonably in the circumstances, applying the standard of a reasonable employer. It reviews the dismissal as a whole and must not substitute its own view merely because another reasonable response was possible.

3. Royal Bank of Scotland v McAdie [2008] ICR 1087 was relevant. An employer’s responsibility for incapacity is a factor in the fairness assessment where it has caused or, as here, aggravated the employee’s condition. The focus remains the circumstances and the employer’s knowledge at dismissal. Such responsibility does not prevent a fair dismissal indefinitely.

4. The Tribunal was entitled to find that the Respondent’s failure to disclose material relating to repeated unfounded complaints had aggravated the Claimant’s depression. By December 2010 the decision-maker had been given material showing why the issue mattered. The Tribunal could reasonably conclude that proceeding directly to dismissal under the attendance policy was unfair at that time.

5. The Tribunal had not used impermissible hindsight. It could find that the Respondent ought to have disclosed the material, or at least explained any policy requirement for a police request. Nor had it held that the Claimant was permanently entitled to a transfer on her own conditions; its conclusion concerned the fairness of dismissal at the particular date.

6. Procedural fairness was properly in issue and forms an integral part of section 98(4). The Tribunal was entitled to rely on the decision-maker’s failure to consider the Claimant’s material and to check an apparent inconsistency before concluding that she had lied.

• Employment Appeal Tribunal: dismissed the Respondent’s appeal and upheld the finding of unfair dismissal.
• Employment Tribunal, Bury St Edmunds: by judgment dated 23 May 2013, upheld the Claimant’s unfair-dismissal claim. Liability alone had been determined; remedy remained outstanding.