Shevlin v Innotech Advisers Ltd & Ors

The statutory right not to be unfairly dismissed is distinct from contractual rights. A contractual breach may be relevant under section 98(4) of the Employment Rights Act 1996 only where the contractual issue coincides with the question whether dismissal for the stated reason was fair.

A term fixing the duration of employment, without a promise not to dismiss for redundancy, concerns the timing of dismissal. It does not ordinarily require determination in deciding the fairness of a redundancy dismissal. Even where a contractual breach is relevant, it is not determinative. The tribunal must assess whether the employer acted within the range of reasonable responses.

The Claimant was employed under a contract with the first Respondent while working on the affairs of Lady Sainsbury. Following a review of household and office costs, the Respondents consulted on reducing the Claimant's role and ultimately dismissed her for redundancy.

She contended that 2010 correspondence had contractually secured her employment for Lady Sainsbury's lifetime plus six months. The London (Central) Employment Tribunal dismissed her unfair dismissal and direct age discrimination claims. It found redundancy and held the dismissal fair, including on the alternative assumption that there had been a contractual breach.

The appeal concerned only unfair dismissal. The central issue was whether the Tribunal had to determine the alleged contractual entitlement in order to assess the fairness of the redundancy dismissal.

1. Appeal dismissed. The Tribunal had not erred in declining to determine the alleged contractual entitlement before deciding fairness. The unchallenged reason for dismissal was redundancy. The applicable issue was therefore fairness under section 98(4) of the Employment Rights Act 1996.

2. The statutory unfair-dismissal right is separate from a common-law claim for wrongful dismissal. A contractual breach can nevertheless be relevant where the contractual and statutory questions coincide. That may occur where the fairness of dismissal depends upon whether an instruction was contractually lawful, or where the employer had agreed not to dismiss in the very circumstances relied on as the reason for dismissal.

3. The alleged term here did not have that effect. On the Claimant's own case, it fixed the period of her employment but did not prevent a redundancy dismissal before that period ended. Her complaint was therefore about when she was dismissed, rather than whether redundancy was a fair reason for dismissal. It was analogous to an allegation of dismissal on short notice. The term was potentially relevant factual background, but it did not create the requisite coincidence between the contractual issue and the statutory fairness issue.

4. In any event, the Tribunal had addressed the matter alternatively. It found that the Respondents had considered the claimed contractual arrangement and believed that they were acting consistently with it. Its conclusion that the dismissal remained fair, even if that belief was mistaken and there had been a breach, was a permissible application of the range of reasonable responses. The EAT could not interfere merely because it might take a different view of the contractual position.

• Employment Appeal Tribunal: dismissed the Claimant's appeal against the unfair-dismissal decision.
• London (Central) Employment Tribunal: dismissed claims for unfair dismissal and direct age discrimination. The unfair-dismissal finding alone was appealed.