Stoke on Trent City Council v Savigar (Debarred)

Statutory unfair-dismissal fairness under Employment Rights Act 1996 is not determined by whether dismissal was summary or on notice. A breach of the notice provision may be relevant evidentially, but does not itself make a dismissal unfair.

An Employment Tribunal must decide the dispute advanced by the parties. It must not construct an unpleaded procedural case, especially where the claimant has expressly disavowed it, without raising the point so that the parties can address it. Findings about medical advice and alternative work must rest on the evidence and on a realistic reading of the material as a whole.

The claimant, a Care Manager, made protected disclosures concerning a care provider. Following a rejected grievance and illness-related absence, the Council dismissed her for capability after concluding that she could not return to her substantive post and that no suitable alternative employment was available.

The Employment Tribunal rejected her protected-disclosure detriment claims but upheld her unfair-dismissal claim. It found procedural unfairness because the Council had dismissed without notice, had allegedly ceased seeking alternative work, and had not clarified an Occupational Health report. It made a 100% Polkey reduction to compensation.

The Council appealed. The claimant was debarred from participating. The central issue was whether the Tribunal's three procedural grounds could lawfully sustain its finding of unfair dismissal.

1. Appeal allowed. The Tribunal's finding of unfair dismissal was set aside and replaced with a finding that the dismissal was not unfair.

2. The Tribunal erred in treating summary dismissal, in breach of the contractual notice provision, as itself a ground of statutory unfairness. The statutory inquiry under section 98 of the Employment Rights Act 1996 concerns the reason for dismissal and the employer's reasonableness in treating it as sufficient. Whether notice was given does not enter that framework, save insofar as it may bear on another factual issue. Treganowan v Robert Knee & Co Ltd [1975] ICR 405 and MPI Ltd v Woodland [2007] WL 1157991 established that approach.

3. The Tribunal also reasoned inconsistently. It found that dismissal deprived the claimant of a meaningful opportunity to obtain alternative work, yet made a 100% Polkey reduction because there was no evidence that a further search would have found such work. On those findings, continuing the contract for the notice period could confer no material advantage.

4. The finding that the Council had stopped looking for alternative work after 5 September lacked an evidential basis. Unchallenged evidence stated that, at dismissal, no suitable role had been identified. Further, it was procedurally unfair for the Tribunal to determine the case on a procedural basis which the claimant had not advanced and which had not been put to the Council.

5. The Occupational Health report had to be read as a whole and in context. It plainly indicated that the claimant was unfit for her substantive post, although she might in future be fit for alternative work. The Tribunal's isolated reading of its double negative was artificial. In any event, the employer had to make its own assessment while taking proper account of Occupational Health advice: Gallop v Newport City Council [2014] EqLR 141.

• Employment Appeal Tribunal: Allowed the Council's appeal and substituted a finding that the dismissal was not unfair.
• Employment Tribunal, Birmingham: In a reasoned judgment sent on 21 March 2014, rejected the protected-disclosure detriment claims but upheld unfair dismissal. It awarded a basic award and no compensatory award after a 100% Polkey reduction.