Maymask (148) LLP v Jobson

An Employment Tribunal may reject both redundancy and some other substantial reason as the employer’s reason for dismissal where its factual findings show that the employee’s existing role continued and that the asserted business reason was not a fact or belief which caused the dismissal. The employer’s label is evidential, but the true reason remains a question of the facts known or beliefs held when it dismissed.

In assessing fairness under Employment Rights Act 1996, section 98(4), a Tribunal does not substitute its own view merely by identifying contradictions in the employer’s evidence and failures to investigate material matters. A Polkey assessment may conclude that there was no chance of a fair process ending in dismissal where the factual basis for dismissal was not properly investigated.

The employer appealed against an Employment Judge’s decision that its head chef had been unfairly dismissed, and against the compensatory award of £35,187.17 made at a later remedy hearing.

The employer had presented the termination as a redundancy arising from the removal of an alleged executive-chef role. The Employment Judge found that the employee remained head chef at the Louis Restaurant, and that the additional duties relied on by the employer were minimal duties performed under that existing contract. The Judge also found that the proposed alternative role was effectively the same role at substantially reduced pay, and that the employer had failed to investigate the employee’s objections.

The appeal alleged errors concerning redundancy, some other substantial reason, substitution under section 98(4), and the application of Polkey.

1. Appeal dismissed. The Employment Judge was entitled to find that the dismissal was neither for redundancy nor for some other substantial reason, and was unfair.

2. The finding that the employee performed the minimal additional duties in his capacity as head chef was fatal to the redundancy ground. The employer accepted that its need for a head chef at the Louis Restaurant had not ceased or diminished. The Tribunal was therefore entitled to conclude that the dismissal resulted from the employee’s refusal to accept a pay reduction, rather than a diminution in the need for employees to perform work of a particular kind.

3. The Judge had correctly approached the reason for dismissal consistently with Abernethy v Mott Hay and Anderson [1974] IRLR 213. Although an employer’s stated label is evidence of its real reason, the relevant reason must be founded on facts known or beliefs held by the employer which caused the dismissal. On the evidence, it was open to the Judge to find that an asserted business necessity to reduce pay had not caused the dismissal. Having rejected both reasons advanced by the employer, the Judge was not required to identify a different positive reason before finding the dismissal unfair.

4. There was no impermissible substitution under section 98(4) of the Employment Rights Act 1996. The Judge had considered the evidence and identified material contradictions, including the absence of investigation into the employee’s actual role, the additional work he performed, and his assertion that the process was directed to reducing his pay. Those findings supported the conclusion that dismissal lay outside the range of reasonable responses.

5. The Judge had correctly applied Polkey. A detailed restatement of its principles was unnecessary. The finding that a fair procedure and proper identification of the employee’s role gave no prospect of dismissal was open to the Tribunal on the facts found.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the finding of unfair dismissal.
• Employment Tribunal: Employment Judge Singleton held that the employee’s unfair-dismissal claim succeeded and, at a subsequent remedy hearing, awarded compensation of £35,187.17.