Appiah v Compass Group UK & Ireland Ltd

In assessing unfair dismissal under section 98(4) of the Employment Rights Act 1996, the Employment Tribunal must assess the fairness of the dismissal process as a whole, including any internal appeal. This is a core part of the statutory assessment even if the pleaded issues do not expressly identify the appeal.

Where an employee challenges reliance on an earlier final written warning during a later process, a reasonable employer may need to examine the relevant file. The employer is not ordinarily required to reinvestigate the earlier disciplinary process or rehear witnesses. The required enquiry is limited by the nature of the complaint, including whether bad faith, lack of prima facie grounds or manifest impropriety is clearly raised.

A perversity appeal fails where the Tribunal’s factual conclusion was a permissible inference from the evidence.

The Claimant, a domestic assistant, was dismissed for taking unauthorised leave while subject to a live final written warning. Her internal appeal included documents challenging the basis of that warning. The appeal officer adjourned the hearing, considered the appeal and upheld the dismissal.

Employment Judge Jones dismissed the Claimant’s unfair-dismissal claim on 17 November 2015. The Judge found that the appeal officer had considered the earlier warning and that the overall dismissal process was fair. The Claimant appealed, contending that the Employment Tribunal should have assessed the reasonableness of the appeal officer’s treatment of her challenge to the warning and that the finding of consideration was perverse.

The central issues were whether section 98(4) required consideration of the internal appeal and whether the Employment Judge’s factual inference was open to her.

1. Appeal dismissed. The Employment Judge made no error of law and her conclusion that the appeal officer considered the final written warning was not perverse.

2. Under section 98(4) of the Employment Rights Act 1996, the Employment Tribunal had to consider the substance of the entire dismissal process, including the internal appeal, and determine whether the process overall was fair. That obligation was a core feature of an unfair-dismissal claim. The pleaded questions of fairness were, in any event, sufficiently broad to encompass the appeal stage.

3. The principles governing an Employment Tribunal’s ability to go behind an earlier final warning also informed what a reasonable employer may be expected to do when the employee challenges that warning during a later process. There are limits to any required reconsideration. If bad faith, absence of prima facie grounds, or manifest impropriety is clearly raised, the employer may have to revisit the earlier matter. A complaint about an earlier warning may also require the employer to examine the basic documents on file to determine whether reliance upon it would be inappropriate.

4. The appeal officer was not required to reinvestigate the earlier disciplinary process by interviewing witnesses. It was reasonable to expect him to consider the documentary file. The Employment Judge was entitled to infer that he did so from his adjournment to investigate the points made, the fact that the warning was among them, and his subsequent letter stating that the warning had been duly considered.

5. An appeal to the Employment Appeal Tribunal lies only on a question of law. The limited nature of perversity review meant that the Employment Judge’s permissible inference could not be displaced. The documents also provided no real basis for supposing that the warning had been issued in bad faith, without prima facie grounds, or in manifestly inappropriate circumstances; that observation was a postscript and not necessary to the result.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s dismissal of the unfair-dismissal claim was upheld.
• Employment Tribunal: Employment Judge Jones, sitting at East London, dismissed the Claimant’s unfair-dismissal claim on 17 November 2015.