Ikejiuba v WM Morrison Supermarkets Plc

Under section 101(3) of the Employment Rights Act 1996, the question is whether an employee’s giving, or proposal to give, an opting-out notice was the reason or principal reason for dismissal. It is not resolved by a but-for inquiry or merely by showing that the proposed opt-out triggered later events.

The tribunal must determine the employer’s operative reason as a question of fact. An appellate court will not interfere where the tribunal correctly directs itself and its finding is open on the contemporaneous evidence. A dismissal may therefore be for refusal to accept a revised contractual arrangement which accommodates Sunday opt-out, rather than for the opt-out itself.

The Claimant accepted employment as a pharmacist on a 43-hour flexible pattern that included Sunday working. Shortly before his start date, he stated that he could not work Sundays for religious reasons and referred to an opt-out. The Respondent offered a 37-hour arrangement without Sunday work. The Claimant did not accept it and the Respondent withdrew the original offer.

The Employment Tribunal at Leeds dismissed his claim of automatic unfair dismissal but allowed a breach-of-contract claim. It found that the withdrawal resulted from his refusal of the revised hours, not from his proposal to opt out of Sunday working. The Claimant appealed, alleging legal error and perversity. The central issue was whether the proposed opt-out was the reason or principal reason for dismissal under section 101(3) of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal correctly identified the statutory question under section 101(3) of the Employment Rights Act 1996: whether the Claimant’s giving, or proposal to give, an opting-out notice was the reason or principal reason for dismissal.

2. The Claimant’s proposed Sunday opt-out and the withdrawal of employment were connected in the factual sequence. That connection did not establish that the opt-out was the statutory reason or principal reason. The suggested but-for approach was inconsistent with the statutory language.

3. The tribunal was entitled to find from the contemporaneous documents that the Respondent had sought to accommodate the Claimant’s proposed Sunday opt-out by offering revised hours. The operative reason for retracting the offer was his refusal to accept that revised arrangement, rather than his proposal to opt out.

4. The reason or principal reason for dismissal is a question of fact for the tribunal. Its conclusion was supported by ample evidence, including the sequence of negotiations and the Respondent’s business reasons. It neither erred in law nor reached a perverse conclusion.

5. The Respondent’s costs application was refused. Although the appeal failed, it had passed the sift stage and the threshold for an award of costs in the Employment Appeal Tribunal was not met.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s dismissal of the automatic-unfair-dismissal claim was upheld.
• Employment Tribunal, Leeds: In written reasons sent on 17 October 2018, dismissed the automatic-unfair-dismissal claim and allowed the Claimant’s breach-of-contract claim.