Dosanjh v Nottinghamshire Healthcare NHS Trust

In a wrongful-dismissal claim, the tribunal must determine whether the employee was in repudiatory breach of contract. It is not confined to the information known to the employer when it dismissed. Material arising after dismissal may therefore be relevant to that issue, even though it may not bear on the fairness of dismissal.

A reconsideration should be granted where material relied on by a party could undermine findings central to the tribunal's conclusions. The tribunal erred by declining to revisit findings without addressing an omitted email attachment which was capable of showing that the employee had informed her supervisor of outstanding work.

The claimant, a clinical psychologist, was summarily dismissed after allegations concerning patient records, outstanding reports and files held at home. The Employment Tribunal dismissed her claims for unfair and wrongful dismissal.

She applied for reconsideration, relying on material from proceedings before her professional body and on an attachment to a 2009 email. She contended that the professional-body material exposed weaknesses in the employer's investigation and that the attachment showed she had told her supervisor about outstanding reports.

The Employment Tribunal refused reconsideration. The claimant appealed only the refusals recorded in paragraphs 15 and 19 of that decision. The central issue was whether those refusals were lawful in light of the material placed before the Tribunal.

1. Appeal allowed. The Employment Tribunal's refusals to reconsider its liability judgment were set aside. The reconsideration application was remitted to the same Employment Tribunal, if practicable.

2. For wrongful dismissal, the issue was whether the claimant had in fact committed a repudiatory breach of contract entitling summary dismissal. That differs from unfair dismissal, where the employer's knowledge and grounds at the time of dismissal are material. The Tribunal therefore erred in excluding material from the professional-body proceedings merely because it was unavailable to the disciplinary and appeal panels.

3. Although fitness to practise and the contractual and disciplinary issues were not identical, their factual bases substantially overlapped. The professional body's criticisms of the investigation were capable of being relevant both to whether the claimant was in fundamental breach and to the Tribunal's finding that the employer's investigation had been comprehensive.

4. The Tribunal also erred in refusing to revisit its conclusion about the 13 August 2009 email. Its liability judgment omitted both the reference to an attachment and the attachment itself. The attachment was capable of showing that the claimant had informed her supervisor that reports remained outstanding. It therefore directly undermined the finding that the email did not put the supervisor on notice that the claimant was behind with her reports.

5. Reconsideration was consequently necessary in the interests of justice under Regulation 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

• Employment Appeal Tribunal: allowed the appeal and set aside the Employment Tribunal's refusal to reconsider.
• Employment Tribunal: dismissed the claimant's unfair- and wrongful-dismissal claims in a judgment sent on 16 March 2016, and refused reconsideration in a decision sent on 6 October 2016.