Nabili v Norfolk Community Health and Care NHS Trust

On a strike-out application for unfair dismissal, a tribunal must not decide that an apparent procedural defect is immaterial because a fair procedure would probably have produced the same dismissal. That is the question prohibited by Polkey when deciding whether the dismissal was fair. The likely outcome of a fair procedure may instead be relevant to remedy.

A procedural defect does not inevitably make a dismissal unfair. The tribunal must assess whether the procedure was fair overall. However, where disputed facts could establish that the employer unfairly proceeded with a disciplinary hearing in the employee’s absence, the claim cannot be struck out by relying on the predicted outcome of a corrected procedure.

The Employment Tribunal struck out Dr Nabili’s unfair-dismissal claim under rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. She had been summarily dismissed for gross misconduct after undertaking work for another NHS trust while excluded from clinical practice.

She alleged, among other matters, that the disciplinary panel proceeded in her absence despite an earlier agreement to postpone the hearing while she attended her sick mother abroad. There was a factual dispute about whether her representative had agreed that the hearing could proceed and represent her.

The Employment Judge assumed procedural flaws but concluded that the claim had no reasonable prospect because attendance would be highly unlikely to have changed the outcome. The appeal concerned whether that approach lawfully justified strike-out.

1. Appeal allowed. The Employment Judge’s strike-out decision was quashed. The unfair-dismissal claim was to proceed to a full merits hearing.

2. The stringent test for striking out a claim with no reasonable prospect of success was material. The disputed and potentially complex circumstances in which the disciplinary hearing proceeded in the claimant’s absence were, on their face, unsuitable for summary disposal.

3. A procedural flaw is not automatically equivalent to an unfair procedure. As Fuller v Lloyds Bank plc confirms, fairness must be assessed overall. The Employment Judge therefore correctly identified the issue as whether the alleged flaws could render the dismissal unfair.

4. However, the Judge then adopted the respondent’s contention that the decisive issue was whether the outcome would probably have been different had the claimant attended. That was the prohibited question identified in Polkey v AE Dayton Services [1987] ICR 142. Under section 98(4) of the Employment Rights Act 1996, a failure to take procedurally appropriate steps cannot be treated as irrelevant to fairness merely because those steps would probably not have altered the dismissal.

5. An employer may in exceptional circumstances reasonably dispense with normally appropriate steps if it itself reasonably considered them futile. This was not such a case. Neither the disciplinary body nor the Employment Judge addressed whether a hearing with the claimant present or represented could properly be regarded as futile, notwithstanding the earlier investigation.

6. The likely result of a fair procedure may bear on compensation, but it could not support the strike-out of liability. The EAT expressed no view on the ultimate merits or value of the claim.

• Employment Appeal Tribunal: Allowed the appeal and quashed the strike-out decision.
• Employment Tribunal: At a Pre-Hearing Review on 20 June 2012, struck out the unfair-dismissal claim as having no reasonable prospect of success under rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.