Centrepoint Soho Ltd v. Omaboe

When assessing fairness under section 98(4) of the Employment Rights Act 1996, a tribunal must assess the dismissal procedure as a whole, including any internal appeal. An appeal can cure an earlier procedural defect where it gives the employee the opportunity which the earlier process denied.

A tribunal must decide a claim under section 15 of the Equality Act 2010 by reference to the unfavourable treatment relied on by the claimant. It cannot determine an unpleaded claim based on a different alleged detriment, without giving the employer notice and an opportunity to respond. A distinct form of alleged treatment also requires proof of its own causal connection with disability.

The employee, who had been absent through ill health, was dismissed for capability. The Employment Tribunal held that the dismissal was substantively fair but procedurally unfair because the employer had not clearly warned her that dismissal was a possible outcome of the final absence-review meeting. It found that the internal appeal had not cured that defect.

The Tribunal also upheld a claim under section 15 of the Equality Act 2010. Although the claim had been presented and conceded on the basis that dismissal itself was the unfavourable treatment, the Tribunal held that the timing or manner of dismissal was unjustified.

The employer appealed against both findings. The central issues were whether the appeal cured the identified procedural defect and whether the Tribunal could uphold a section 15 claim on an unpleaded basis.

1. Appeal allowed. The findings of unfair dismissal and discrimination arising from disability were set aside, and both claims were dismissed.

2. On unfair dismissal, the Tribunal correctly recognised that fairness under section 98(4) of the Employment Rights Act 1996 requires the procedure to be assessed as a whole, including an appeal. Its only identified defects were the failure, before dismissal, clearly to explain that the process had reached the relevant stage and that dismissal was a possible outcome.

3. The appeal hearing gave the employee the opportunity that had been denied at the earlier meeting: she knew dismissal was in issue and could make submissions and provide medical evidence. The Tribunal had found the appeal officer’s process thorough and had found no procedural unfairness in either the appeal officer’s discussion with the dismissing manager or the late disclosure of the earlier meeting minutes. The employee’s inability to speak directly to the dismissing manager did not make the appeal unfair.

4. On the Tribunal’s unambiguous findings, there was no tenable basis for concluding that the appeal had failed to cure the earlier defect. Although section 98(4) normally involves a factual assessment for the Tribunal, the facts permitted only one answer. The unfair-dismissal claim was therefore dismissed rather than remitted.

5. On section 15 of the Equality Act 2010, the claim before the Tribunal concerned the fact of dismissal. The Tribunal impermissibly decided a different claim, namely that the particular timing or manner of dismissal was unfavourable treatment. That claim had not been presented, considered, or answered, and it required proof of a causal link between the disability and that distinct treatment. Informality in Tribunal proceedings could not justify creating it without notice. There was no claim to remit for fresh determination.

• Employment Appeal Tribunal: Allowed the employer’s appeal and set aside the Employment Tribunal’s findings of unfair dismissal and discrimination arising from disability.
• Employment Tribunal at East London: By a decision dated 16 August 2016, upheld the employee’s unfair-dismissal claim and her claim under section 15 of the Equality Act 2010.