Holman v Devon County Council

A contractual conduct procedure must be construed objectively in its context. Where it requires that decisions be made by an officer not directly associated with the employee, that natural-justice safeguard applies to a suspension decision as well as to later disciplinary decisions. Suspension is a serious matter.

A requirement that alternatives to suspension should be discussed whenever possible is mandatory, subject only to circumstances in which a meeting or discussion is not possible. It is not a discretionary encouragement.

Where an Employment Tribunal has erred on those matters, the Employment Appeal Tribunal must remit unless the error was immaterial or the lawful outcome is clear without further fact-finding.

The claimant resigned after being suspended while a disciplinary process was pursued. He alleged that the respondent had committed repudiatory breaches of contract and that he had therefore been constructively dismissed.

The Employment Tribunal rejected the unfair-dismissal claim. It held that the manager who suspended him was an appropriate designated officer and that the contractual conduct policy merely encouraged, rather than required, discussion of alternatives to suspension.

On appeal, the claimant challenged those conclusions. The central issues were whether the manager’s prior association with the claimant disqualified him from making the suspension decision, and whether the policy required discussion of alternatives, including redeployment.

1. Appeal allowed and remitted. The Employment Tribunal erred in law on both grounds, but the Employment Appeal Tribunal could not determine whether the errors ultimately established a constructive dismissal.

2. The contractual Conduct Policy and Procedure applied its natural-justice principles generally. Its requirement that a decision-maker should not be directly associated with the employee therefore applied to suspension, a serious decision, and was not confined to dismissal or a disciplinary hearing. The Employment Tribunal had concentrated on the manager’s delegated authority without addressing whether his previous involvement with the claimant made him ineligible to suspend. The point had been sufficiently raised below.

3. Paragraph 17.5 of the policy required a meeting and discussion of alternatives to suspension, including redeployment, whenever possible. In its contractual context, “should” was mandatory, qualified only by the possibility of the meeting or discussion. The Tribunal erred in treating the word as merely permissive.

4. Applying Jafri v Lincoln College [2014] EWCA Civ 449, the EAT could not substitute its view on unresolved factual matters. It was necessary for the Tribunal to decide whether either breach was repudiatory, whether it had been affirmed, and whether it remained material to and formed part of the reason for the resignation.

5. Applying the proportionality considerations in Sinclair Roche & Temperley v Heard [2004] IRLR 763, remission to the same Tribunal was appropriate. The original hearing had been substantial, the decision was not wholly flawed, and there was no real risk of an impermissible second bite at the cherry.

• Employment Appeal Tribunal: appeal allowed. The case was remitted to the same Employment Tribunal for findings on repudiation, affirmation and materiality.
• Employment Tribunal: rejected the claimant’s constructive-unfair-dismissal claim in written reasons sent on 1 December 2014.