Tolley v Scofield

In determining fairness under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess both procedure and substance by reference to the circumstances known to the employer at dismissal. A procedural failure may itself make a dismissal unfair, even if a fair procedure would probably have produced the same outcome. The later hypothetical outcome is relevant to remedy, not ordinarily to liability.

Under section 123(6), an employee’s blameworthy conduct may contribute to a dismissal for some other substantial reason. Where the Tribunal’s findings make contributory fault a live possibility, it must raise, consider and determine the issue, even if the employer did not expressly advance it.

The Claimant was a personal assistant in a small team providing continuous personal care to the Respondent, who acted through his Court of Protection-appointed deputy. She was dismissed for some other substantial reason, namely an irretrievable breakdown of trust and confidence after other care staff raised concerns about her conduct.

The East London Employment Tribunal held that the employer had a genuine and reasonable basis for loss of trust, but the dismissal was procedurally unfair. Further statements obtained from complainants had been relied on without being disclosed to the Claimant. It limited compensation to one week’s pay because disclosure would not have altered the ultimate dismissal decision.

The employer appealed, contending that the procedural defect could not render the dismissal unfair and that the Tribunal should have considered a reduction for contributory fault.

1. Appeal allowed in part. The EAT upheld the finding of unfair dismissal. The Employment Tribunal had correctly treated fairness under section 98(4) of the Employment Rights Act 1996 as requiring an assessment of both substance and procedure, judged by the range of reasonable responses at the time of dismissal.

2. Following Polkey v A E Dayton Services Ltd [1988] 1 AC 344 HL, the question at the liability stage was not whether disclosure of the further statements would in fact have changed the result. It was whether the employer’s decision to withhold material, detailed evidence on which the decision-makers relied fell within the range of reasonable responses. The Tribunal was entitled to find that it did not. The material deprived the Claimant of a proper opportunity to know and answer the detailed case against her, and the EAT could not characterise that assessment as perverse.

3. The EAT allowed the appeal on contributory fault. Section 123(6) requires a causal or contributory connection between the employee’s blameworthy conduct and the dismissal; it is not confined to dismissals whose stated reason is conduct. The Tribunal’s findings that the Claimant accused close colleagues of fabrication or exaggeration, and that this undermined the working relationship, made culpable conduct a live issue.

4. Applying Swallow Security Services Ltd v Millicent UKEAT/0297/08, the Tribunal was required to raise and decide whether there was contributory fault and, if so, what just and equitable deduction should be made. The issue was remitted to the same Tribunal. The basic award was not in issue.

• Employment Appeal Tribunal: Allowed the employer’s appeal only on the failure to consider contributory fault, and remitted that issue to the same Employment Tribunal.
• East London Employment Tribunal: On 4 July 2016, with judgment sent on 5 July 2016, upheld the unfair-dismissal complaint but limited the compensatory award to one week’s pay.