Juric v Look Ahead Care Support and Housing

In a protected-disclosure dismissal claim, the employer bears the burden of establishing the reason or principal reason for dismissal. An Employment Tribunal's erroneous statement that the employee bears that burden will not justify interference if the error had no operative effect on its factual findings.

In assessing ordinary unfair dismissal under section 98(4), the Tribunal may find dismissal within the range of reasonable responses where the employee deliberately disobeyed a clear and reasonable instruction. Fairness is assessed across the process as a whole. A procedural criticism will not establish unfairness where there was no material factual dispute and it did not affect the final decision.

The appellant, a care-support employee, was dismissed after she failed to comply with an instruction not to accompany a resident to a hospital appointment while her DBS clearance had lapsed. Her internal appeal varied summary dismissal to dismissal on notice.

The Employment Tribunal rejected claims that the dismissal was automatically unfair for protected disclosures under the Employment Rights Act 1996 and ordinarily unfair under that Act. It also awarded one and a half days' outstanding holiday pay. The employee appealed, alleging errors concerning the burden of proof, the fairness of the dismissal process, reasons, and holiday-pay calculation.

1. Appeal dismissed. The Employment Tribunal misstated the burden of proof on the protected-disclosure claim. The correct approach is that, after the employee has raised evidence capable of supporting a different and inadmissible reason, the employer must show the reason or principal reason for dismissal: [2008] ICR 799.

   The error was immaterial. The Tribunal had in fact found that the respondent had established conduct as the reason for dismissal. The decision-maker did not know of the four disclosures found to be qualifying disclosures. They could therefore not have been the reason or principal reason for dismissal under section 103A of the Employment Rights Act 1996.

2. The Tribunal made sufficient findings that the instruction on 6 May was clear, unequivocal, consistent with policy, and reasonable. The timing of the instruction and the respondent's responsibility for the lapse of DBS clearance did not undermine the fairness of dismissing the appellant for her response to that instruction.

3. The expired final written warning had been disregarded at the internal appeal. It had consequently ceased to matter to the final dismissal decision for the purposes of section 98(4). The Tribunal was entitled to assess the process as a whole and to reject the complaint that the investigating manager's involvement made the procedure unfair. There was no substantial factual dispute requiring resolution by an independent investigator.

4. The holiday-pay calculation was supported by the leave records. They showed 25 contractual days plus four carried-over days, followed by pro-rating on dismissal and deduction of ten days already paid. The Tribunal was entitled to award the remaining one and a half days. A different alleged contractual entitlement was unsupported by evidence before the Tribunal and was outside the appeal.

• Employment Appeal Tribunal: dismissed the employee's appeal.
• Employment Tribunal: rejected the automatic and ordinary unfair-dismissal claims, and awarded one and a half days' outstanding holiday pay.