The Secretary Of State For Justice v Norridge & Anor

In a misconduct dismissal, the tribunal must identify the employer’s genuine reason for dismissal and assess fairness under section 98(4) of the Employment Rights Act 1996 by reference to that reason. Assessing fairness by reference to a different reason is an error of law.

A difference between the reason found and the employer’s pleaded case does not make dismissal automatically unfair. The tribunal must decide, on the evidence, whether the employee had procedural fairness, including a proper opportunity to answer the real allegation. An appellate tribunal may substitute its own result after a misdirection only where the original outcome was plainly and unarguably right; otherwise the fairness issue should be remitted.

The deceased claimant, a prison officer, was summarily dismissed after allegations concerning activities undertaken during sickness absence. Her parents pursued claims for unfair dismissal and disability discrimination as her personal representatives.

The Cardiff Employment Tribunal upheld the unfair-dismissal claim. It dismissed the disability-discrimination claim, against which there was no appeal. Although the Tribunal found that the employer’s genuine reason for dismissal was the claimant’s apparent dishonesty during the investigation and disciplinary process, it assessed fairness primarily by reference to the original sickness-absence allegations.

The Secretary of State appealed. The central issue was whether that mismatch was an error of law and, if so, whether the EAT could nevertheless uphold the finding of unfair dismissal.

1. Appeal allowed. The Employment Tribunal found that the genuine reason for dismissal was the employer’s belief that the claimant had acted dishonestly during the investigation and disciplinary process. That was a conduct reason capable of being fair under section 98 of the Employment Rights Act 1996.

2. The Tribunal nevertheless decided fairness by examining whether the original allegations concerning activities during sickness absence had been properly investigated and established. It therefore did not apply section 98(4) to the reason which it had itself found to be the actual reason for dismissal. That was an error of law.

3. The difference between an employer’s pleaded case and the real reason found by a tribunal is not merely a formal matter where it affects substance. However, it does not produce an automatic conclusion that dismissal was unfair. The required inquiry is fact-sensitive. It includes whether the employee was given a fair opportunity to address the real concern, consistently with natural justice.

4. The Tribunal had made findings capable of supporting reasonable grounds for the employer’s belief in the claimant’s lack of candour. It had not, however, decided the wider fairness question concerning that reason, including the adequacy of the opportunity given to the claimant to respond. The EAT could not say that either a fair or an unfair dismissal finding was inevitable.

5. Applying the appellate restraint described in [1984] IRLR 329, the EAT remitted the outstanding section 98(4) fairness inquiry to the same Employment Tribunal, if practicable. The Tribunal was to determine fairness in light of its finding as to the real reason for dismissal.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the outstanding fairness issue under section 98(4) of the Employment Rights Act 1996 to the same Employment Tribunal, if practicable.
• Employment Tribunal (Cardiff): Held the dismissal unfair. It dismissed the disability-discrimination claim; that decision was not appealed.