Hawkes v Ausin Group (UK) Ltd

In determining fairness under section 98(4) of the Employment Rights Act 1996, a tribunal must assess whether the employer acted reasonably in treating the established reason as sufficient for dismissal. It must not decide fairness by asking only whether a procedural defect would have altered the outcome.

That does not prevent a tribunal from finding, as part of its assessment of fairness, that a prior meeting would have been futile because the employee had already made an irreversible commitment and the parties had reached an impasse. A separate Polkey assessment of the effect of a procedural flaw may reinforce that the tribunal did not conflate compensation with liability.

The claimant, a Royal Marine reservist employed as a Business Development Manager, was dismissed after committing himself to a voluntary seven-week overseas training exercise. The Employment Tribunal found that the respondent could not sustain his absence at a crucial time for its small business. It held that this was some other substantial reason and that the dismissal was fair.

The Tribunal also found that the claimant had already committed himself to the exercise and would not have changed his position if warned that dismissal might follow. It made an alternative Polkey finding that correction of any procedural defect would not have affected the outcome.

The claimant appealed, alleging that the Tribunal had impermissibly used a Polkey analysis when deciding fairness and that its factual finding lacked evidential support.

1. Appeal dismissed. Read as a whole, the Employment Tribunal's Reasons showed that it had directed itself correctly under section 98(4) of the Employment Rights Act 1996. It asked whether the respondent had acted reasonably in treating the claimant's impending seven-week absence as sufficient reason for dismissal.

2. The Tribunal did not treat the hypothetical effect of procedural steps as the test of substantive unfairness. It considered whether the absence of a meeting before the dismissal decision, or adequate notice of the dismissal meeting, made the dismissal unfair. It was entitled to find that an earlier meeting would have achieved nothing because the claimant had already committed himself to the exercise, would not change his position, and the parties had reached an impasse.

3. This conclusion was consistent with Polkey v A E Dayton Services Ltd, [1988] 1 AC 344. Although a tribunal ordinarily may not decide fairness by asking whether proper procedure would have altered the outcome, it may conclude that an employer reasonably regarded otherwise appropriate steps as futile in exceptional circumstances. The Tribunal's separate alternative assessment that a procedural flaw would not have affected compensation was a proper Polkey exercise and did not infect its fairness finding.

4. The challenge to the finding that the claimant would not have changed his mind raised no error of law. There was substantial evidence supporting it, including his signed additional duties commitment, his email stating that he was obliged to undertake the training, and the Tribunal's findings about his stated position. Where evidence permits competing conclusions, its weight is for the Tribunal. The relied-on meeting extracts were equivocal and did not compel a contrary conclusion.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal's dismissal of the unfair-dismissal complaint was upheld.
• Employment Tribunal, London (Central): following a hearing on 6 and 7 April 2017, Employment Judge Grewal held that the dismissal was for some other substantial reason and was fair. No citation was stated.