Hussain v Jurys Inns Group Ltd

An employee does not have an absolute right to an appeal against dismissal. Under section 98(4) of the Employment Rights Act 1996, the tribunal must assess the fairness of the process as a whole and in all the circumstances. The absence of an appeal is a relevant factor, but it will not make a dismissal unfair where an appeal could not materially affect that assessment.

An Employment Tribunal does not improperly substitute its own view merely by making firm factual findings. It may need to determine disputed facts, particularly where unfair dismissal is joined with discrimination and victimisation claims. Any assumed substitution error is immaterial where the findings establish that a reasonable employer could treat the established conduct as sufficient reason to dismiss.

The Claimant, a Night Manager, was dismissed for some other substantial reason after the Respondent concluded that mutual trust and confidence had broken down. The Employment Tribunal at Reading dismissed his claims for unfair dismissal, race discrimination and victimisation. It found that the dismissal resulted from his conduct and not from his nationality or his earlier Tribunal claims.

The Claimant sought a late appeal against dismissal, almost three months after the decision. The Respondent declined to entertain it. The Tribunal held that the dismissal process was fair and that an appeal was neither required nor likely to have altered the result. It later refused the Claimant's review application.

On appeal, the central issues were whether the Tribunal had substituted its own assessment for that of the employer and whether refusal of an appeal made the dismissal unfair.

1. Appeal dismissed. The Employment Tribunal made no material error of law in dismissing the unfair dismissal claim.

2. Section 98(4) of the Employment Rights Act 1996 requires an assessment of whether the employer acted reasonably in all the circumstances. Following Taylor v OCS Group Ltd [2006] EWCA Civ 702, procedural fairness concerns the disciplinary process as a whole. There is no legal rule that a dismissal can be fair only if the employee is offered an appeal.

3. The applicability of the ACAS Code to this form of dismissal was not finally decided. Even assuming that the Tribunal erred in treating the Code as inapplicable, the error was immaterial. The Tribunal was entitled to find that the dismissal reason and the meeting process were fair, that an appeal could add nothing because the past events could not be changed, and that the late request was not a genuine attempt to challenge dismissal.

4. The Tribunal did not fall into the substitution error described in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220. It had correctly directed itself on section 98(4). It also had to make findings about the truth of the employer's stated reasons in order to decide the connected race discrimination and victimisation claims. Its strong language did not show that it applied the wrong legal test.

5. In any event, even if the Tribunal had substituted its own view, the error was immaterial. Its unchallenged factual findings established the truth of the matters relied on by the employer. An employer could not reasonably be regarded as acting unreasonably in treating those matters as sufficient reason for dismissal.

• Employment Appeal Tribunal: Dismissed the Claimant's appeal: [2016] UKEAT 0283_15_0302.
• Employment Tribunal, Reading: Dismissed claims for unfair dismissal, direct race discrimination and victimisation. Its Reasons were sent to the parties on 11 February 2015. It later refused a review application in a decision sent on 2 April 2015.