H C Premachandra v HBOS PLC

Where an employee cannot continue in their existing role without contravening an enactment, a dismissal may fall within section 98(2)(d) of the Employment Rights Act 1996. That does not determine fairness. Under section 98(4), the tribunal must consider whether dismissal was reasonable in all the circumstances, including a practicable alternative role and the employer’s handling of a proposed redeployment.

A tribunal errs if it decides fairness on an asserted regulatory prohibition for which there is no evidential or legal foundation. An employer’s internal qualification policy is not, without evidence, an externally imposed regulatory requirement. Reasons must be read fairly and as a whole, but that approach cannot sustain a material finding unsupported by the evidence.

The Claimant, a banking adviser whose tier 1 visa was due to expire, obtained a tier 2 visa after the Respondent proposed employing her as a financial consultant. The Respondent then withdrew her training for the CeFAP qualification, withdrew the proposed role and dismissed her.

The Employment Judge dismissed her unfair-dismissal complaint. He found that the existing banking-adviser role could not lawfully continue and held that the Claimant could not be employed as a financial consultant until she had obtained CeFAP because of stringent requirements of the Financial Conduct Authority.

On appeal, the dismissal reason under section 98(2)(d) was not challenged. The central issue was whether the tribunal had lawfully decided the separate question of fairness under section 98(4), particularly in relation to redeployment.

1. Appeal allowed. The Employment Judge’s finding that the Claimant could not be employed as a financial consultant without CeFAP because of Financial Conduct Authority requirements had no legal or factual foundation. The Respondent accepted before the Appeal Tribunal that no Financial Conduct Authority rule imposed that requirement.

2. The qualification requirement was instead the Respondent’s own policy. It could have relied on that policy when answering the case for redeployment, but the tribunal would then have had to decide whether it was reasonable, under section 98(4) of the Employment Rights Act 1996, to dismiss rather than make an exception. Relevant matters included the Respondent’s earlier willingness to make such an exception and its failure to give the Claimant an opportunity to be heard before changing position.

3. The Employment Judge’s alternative reasoning was also erroneous. Although the Claimant could no longer lawfully remain a banking adviser, a dismissal for a reason within section 98(2)(d) is not thereby fair. Section 98(4) required consideration of whether dismissal was reasonable when the Respondent was withdrawing an apparent opportunity to redeploy her as a financial consultant.

4. The Appeal Tribunal declined to substitute a finding of unfair dismissal. Applying Jafri v Lincoln College, [2014] ICR 920, it remitted the section 98(4) issue for fresh determination by a different Employment Judge. The original judge had retired and had expressed strong views on an erroneous basis.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted the issue of fairness under section 98(4) of the Employment Rights Act 1996 for a fresh hearing before a different Employment Judge.
• Employment Tribunal, London Central: Employment Judge Etherington, sitting alone, dismissed the Claimant’s unfair-dismissal complaint by judgment dated 19 June 2014.