USDAW v Burns

Under section 98(4) of the Employment Rights Act 1996, the fairness of a dismissal is a single overall question. Although substantive justification and procedure are distinct strands of the assessment, they must be evaluated together in accordance with equity and the substantial merits of the case.

The consideration or availability of alternative employment may be relevant to fairness. There is, however, no freestanding duty to take all reasonable steps to find it. The question remains whether the employer acted reasonably in all the circumstances. A procedural step may be dispensed with where the employer reasonably regarded it as futile, but the tribunal must assess what the employer did, rather than hypothesise what it might have done.

The claimant, a Recruitment and Development Officer, was dismissed for some other substantial reason after refusing to return to work while managed by the Divisional Officer against whom he had raised unsuccessful grievances.

At a meeting before dismissal, the claimant expressed willingness to undertake other work. The General Secretary said that alternative work would be considered. The Employment Tribunal found that no real inquiry was made into possible clerical work at the employer’s central office. It held that the substantive decision to dismiss was within the range of reasonable responses, but that the failure to investigate alternative employment rendered the dismissal procedurally unfair.

The employer appealed, contending that the Tribunal had wrongly separated substance from procedure, that an alternative post would have been futile, and that the reasons were inadequate.

1. Appeal dismissed. Read fairly and as a whole, the Employment Tribunal had answered the unitary statutory question under section 98(4) of the Employment Rights Act 1996. Its separate discussion of the substantive reason and the procedure reflected the issues agreed by the parties. It did not treat them as independent legal tests. The Tribunal ultimately brought both strands together in finding the dismissal unfair.

2. Section 98(4) requires an overall evaluative judgment. Substantive and procedural considerations may each attract the range of reasonable responses approach, but they both bear on the one question whether the employer reasonably treated the established reason as sufficient to dismiss. The Tribunal had permissibly found that the employer’s failure to investigate possible alternative work was material to that assessment.

3. The futility argument failed. Following Polkey, procedural steps can in exceptional circumstances be futile, but the focus is on the employer’s conduct and knowledge at dismissal. On the Tribunal’s findings, the employer itself regarded an inquiry into alternative work as relevant, gave an assurance that it would undertake one, and did not do so. The Tribunal was not bound to infer that an offer would have been refused.

4. The reasons adequately explained why the claimant succeeded and were compliant with the requirements of rule 30(6). The appeal therefore disclosed no error of law or perversity.

5. The EAT added that the Tribunal’s statement that an employer is obliged to take all reasonable steps to find suitable alternative employment was too absolute. No such freestanding duty arises at common law, employment law or under a code of practice. Alternative employment is instead one potentially relevant circumstance in the section 98(4) evaluation.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s finding that the claimant had been unfairly dismissed was upheld.
• Employment Tribunal, Liverpool: Judgment delivered on 27 February 2012. It held that dismissal for some other substantial reason was substantively within the range of reasonable responses, but that the failure to investigate suitable alternative employment made the dismissal procedurally unfair.