Express Medicals Ltd v O'Donnell

Under section 98(4) of the Employment Rights Act 1996, no fixed procedure is required in every dismissal. However, a tribunal which finds a dismissal unfair because of procedural unfairness must identify the procedure said to be required, its purpose, and why its absence made the dismissal unreasonable.

When assessing future loss following an unfair dismissal, the tribunal must make a predictive assessment where there is evidence that employment might have ended by fair dismissal, resignation or consensual departure. It cannot avoid that assessment merely because it involves uncertainty or speculation.

The Employment Tribunal, London (South), upheld the employee's complaint of unfair dismissal. It found that the employer dismissed him on 5 September 2014 for some other substantial reason: a breakdown of trust and confidence between the two directors and shareholders.

The Tribunal nevertheless held the dismissal unfair, apparently because no procedure had preceded it, and made no Polkey reduction. The employer appealed. The central issues were whether the Tribunal had adequately explained the procedural unfairness finding and whether it could properly conclude that there was no basis for assessing the prospect of an earlier termination of employment.

1. Appeal allowed. It remained open to an Employment Tribunal to find that a dismissal for some other substantial reason arising from a breakdown in trust and confidence was unfair. The employer had therefore not shown that the dismissal was necessarily fair or that the contrary conclusion was perverse.

2. However, the Tribunal's reasons could not sustain its finding of unfairness. Section 98(4) of the Employment Rights Act 1996 does not prescribe a particular procedure. A Tribunal may properly regard procedural fairness as material, but where it finds an otherwise potentially fair dismissal unfair for want of a procedure, it must identify the procedure, explain what fair purpose it would have served, and explain why its absence made the dismissal unreasonable. Here, the parties had already held discussions about separation, yet the Tribunal did not identify what further procedure was required or what it could have achieved.

3. The refusal to make any Polkey assessment was perverse. The Tribunal had found a serious breakdown of trust and confidence sufficient to justify dismissal for some other substantial reason. It had also found that the employee was negotiating the termination of his employment. Those findings supplied ample material from which to assess the prospects that employment would have ended by fair dismissal, consensual termination or resignation, and the competing prospect of reconciliation. A predictive assessment may be difficult and speculative, but a Tribunal must make it where the evidence permits.

4. The issues of fairness and, if unfairness is found, the extent of the compensation reduction were remitted to a fresh Employment Tribunal. That Tribunal must accept that the employer dismissed the employee on 5 September 2014 for some other substantial reason, determine fairness under section 98(4), and assess the relevant risks and chances of termination if compensation falls to be considered.

• Employment Appeal Tribunal: The employer's appeal was allowed and the issues of fairness and any Polkey assessment were remitted to a fresh Tribunal: [2016] UKEAT 0263_15_0902.
• Employment Tribunal, London (South): Employment Judge Harris held the unfair-dismissal complaint well founded in reasons promulgated on 3 June 2015. The Tribunal found a dismissal on 5 September 2014 for some other substantial reason, but held it unfair and made no Polkey reduction.