Dye v Royal Free London NHS Foundation Trust

For the purposes of section 98(1) of the Employment Rights Act 1996, the tribunal must identify the relevant decision-maker and determine the facts or beliefs that actually caused the dismissal. It may objectively determine the proper label for those facts.

In a conduct dismissal, procedural safeguards will normally be required. Under section 98(4), a tribunal cannot itself decide that a hearing would have been futile. It must determine whether the employer, at the time of dismissal, reasonably reached that conclusion. A disciplinary process remains relevant where the dismissal is found to be for conduct.

The Claimant was employed by the Trust so that he could work on secondment to a research charity, RAFT. After disputes with RAFT and a prolonged suspension, he purported to terminate his secondment without first consulting the Trust. The Trust denied that it was his employer but, alternatively, stated that its contractual relationship with him had ended.

The Watford Employment Tribunal dismissed claims for unfair and wrongful dismissal. It found that the Trust had dismissed the Claimant for conduct related to his termination of the secondment, that the dismissal was fair, and that his conduct was repudiatory so as to justify summary dismissal.

The Claimant appealed. The central issues were whether the Tribunal had correctly identified and evidentially supported the reason for dismissal, and whether its conclusions on fairness and wrongful dismissal were perverse.

1. Appeal allowed in part. The Employment Appeal Tribunal upheld the finding that the Trust dismissed the Claimant because he had terminated his secondment with RAFT without consulting it. The Tribunal had permissibly inferred that Mrs Patel was the relevant decision-maker. It had identified the operative facts and beliefs rather than substituted its own reason for dismissal.

2. There was sufficient evidence for that conclusion. Mrs Patel authored the contemporaneous letters which communicated the termination, had taken responsibility for dealings with the Claimant, and explained why the Trust would not continue the employment. The reason was properly characterised as conduct and was capable of justifying dismissal under section 98(1) of the Employment Rights Act 1996.

3. The Tribunal’s conclusion on substantive fairness was not perverse. It could find that the Claimant’s conduct removed the purpose of employment, that his relationship with RAFT had irretrievably broken down, and that no alternative work was available.

4. Its conclusion on procedural fairness was, however, perverse. The guidance in Polkey required the Tribunal to assess whether the employer itself had reasonably concluded that normally appropriate procedures would be futile. The evidence was that the Trust would have held a hearing. It omitted one because it wrongly denied being the employer, not because it considered a hearing futile. The Tribunal also wrongly treated the ACAS Code as irrelevant despite finding a conduct dismissal. The dismissal was therefore unfair for the purposes of section 98(4).

5. The appeal against wrongful dismissal was dismissed. On the unusual facts, the Tribunal was entitled to find that ending the sole secondment without notice or agreement repudiated the employment contract and justified summary dismissal. Remedy for unfair dismissal was remitted to the same Employment Tribunal.

• Employment Appeal Tribunal: Allowed the appeal against the dismissal of the unfair dismissal claim, substituted a finding of unfair dismissal, dismissed the appeal on wrongful dismissal, and remitted remedy to the same Employment Tribunal.
• Watford Employment Tribunal: On 1 July 2014, dismissed the Claimant’s claims for unfair dismissal and wrongful dismissal.