Sharkey v Lloyds Bank Plc

Under Employment Rights Act 1996, section 98, fairness requires an overall assessment of the employer’s actual decision. Substance and procedure must be assessed together. Procedural defects do not automatically make a dismissal unfair, but the tribunal must decide whether they render the dismissal unfair in all the circumstances.

A Polkey assessment of the likelihood of dismissal following a fair procedure concerns compensation after an unfair dismissal. It cannot convert an unfair dismissal into a fair one. A tribunal must give serious regard to the substance of the ACAS Code and relevant contractual procedures, although it need not refer to the Code by name.

The Claimant, a long-serving bank employee, was dismissed for deliberately ending customer calls and avoiding calls by placing herself in an idle status. The dismissing manager had not investigated whether the call-trace evidence could record a system fault. On appeal, the appeal manager obtained technical information that a “Y” in the release column appeared only where the consultant ended the call. She upheld the dismissal.

The Employment Tribunal at Glasgow dismissed the unfair-dismissal claim. It found shortcomings in the disciplinary process, including the late provision of witness statements, but held that the appeal-stage evidence supported a fair dismissal for deliberately ending calls. The Claimant appealed, principally alleging a pre-Polkey error, an unreasonable investigation, perversity, and failures concerning the ACAS Code and the employer’s procedure.

1. Appeal dismissed. The Employment Tribunal had not erred in law in finding the dismissal fair.

2. The statutory question under section 98(4) of the Employment Rights Act 1996 was whether the employer acted reasonably in treating the established misconduct as sufficient reason for dismissal. The conventional approach derived from British Home Stores Ltd v Burchell, [1978] IRLR 379, informed that enquiry. Procedure and substance run together; procedural defects are integral to the overall assessment and are not to be considered in isolation.

3. The Tribunal had not held that an otherwise unfair dismissal became fair merely because dismissal would have occurred after a proper procedure. It had found the dismissal fair on the facts that actually occurred, while taking the defects into account. Its separate Polkey discussion was an alternative assessment of compensation if unfairness had been found. The likelihood of a fair dismissal in any event is a compensation issue, not an answer to whether the actual dismissal was fair.

4. The Tribunal was entitled to accept the appeal manager’s evidence of the technical email and to treat the information as decisive. The appeal investigation supplied reasonable grounds for the conclusion that the Claimant had deliberately terminated calls. The Tribunal was also entitled to regard that misconduct alone as sufficient to place dismissal within the range of reasonable responses.

5. Although the failures to provide witness statements earlier and to pursue identified witnesses were serious matters, the Tribunal had considered their substance. A contractual disciplinary procedure and the ACAS Code were relevant to statutory fairness, but non-compliance did not itself determine the statutory question. Serious regard had been given to the matters addressed by the Code, even without an express reference to it.

• Employment Appeal Tribunal: appeal dismissed: [2015] UKEAT 0005_15_0408.
• Employment Tribunal, Glasgow: Employment Judge Gall dismissed the Claimant’s unfair-dismissal claim in reasons issued on 23 September 2014.