Guy Matthews v CGI IT UK Ltd

The Employment Appeal Tribunal dismissed the appellant's challenge to the Employment Tribunal's findings that the respondent validly treated an irretrievable breakdown of trust and confidence as a potentially fair reason for dismissal under section 98(4) of the Employment Rights Act 1996 and that this was one of the rare cases under Polkey where dismissal without a prior written warning or an offered appeal fell within the range of reasonable responses. The ET was held to have addressed the relevant Polkey principles, Turner v Vestric and the statutory test in section 98(4), and to have considered the respondent's perspective at the time of dismissal.

The EAT also held that the ET did not err in its approach to victimisation and the burden of proof: the tribunal permissibly applied the Hewage approach where the evidence was sufficiently clear and, although an isolated sentence mis-described causation in the section dealing with detriments, the correct material influence test was identified and applied to the alleged victimisation by dismissal. Finally, the ET did not err in refusing a just and equitable extension of time under section 123 of the Equality Act 2010 for the failure-to-make-reasonable-adjustments claim.

Background and procedural posture

• The claimant was employed from 2017 and worked as a Director/Consulting Expert in the respondent's Emerging Technology Practice reporting to a manager (SE). Following illness, redundancy processes and a later grievance and appeal, relations between the claimant and SE became adversarial.
• The respondent sought to redeploy the claimant, the claimant rejected options and pursued further grievances; the respondent concluded the relationship had irretrievably broken down and dismissed the claimant on 10 February 2021 without a written warning and without offering an appeal.
• The claimant brought claims before the Employment Tribunal of unfair dismissal (s98 ERA), automatic unfair dismissal for protected disclosure (s103A ERA), detriment for protected disclosure (s47B ERA), victimisation (s27 EqA), and failure to make reasonable adjustments (ss20-21 EqA). The ET dismissed the substantive complaints and refused a time extension for the reasonable-adjustments claim; the claimant appealed to the EAT.

Issues before the EAT

1. Whether the ET misapplied Polkey in finding dismissal fair despite no prior warning and no right of appeal;
2. Whether the ET misapplied Turner v Vestric by failing to require the respondent to take all reasonable steps (including mediation) to remedy the breakdown when the employer had contributed to it;
3. Whether the ET erred on the law and burden of proof when dismissing the victimisation complaint and in its application of Hewage and Igen; and
4. Whether the ET erred in refusing to extend time under section 123 EqA for the reasonable adjustments claim, including treatment of prejudice and the claimant's disability.

Court's reasoning and conclusions

• The EAT read the ET judgment as a whole and concluded the ET had correctly identified and applied the legal principles, including Polkey, and had found this to be a rare case where the employer could reasonably dispense with procedural steps because the relationship was viewed as terminal and not remediable. The ET's comments about what would likely have happened if a warning or appeal had been offered were to be read in context and did not amount to an unlawful hypothetical inquiry.
• On Turner, the EAT held the ET did consider whether reasonable steps had been taken; it was entitled to find the respondent had taken genuine efforts to rebuild trust and that the claimant had adopted an entrenched position making mediation or other steps impractical.
• On victimisation and burden of proof, the EAT held the ET permissibly applied Hewage: where evidence allows clear positive findings, the tribunal is not required to follow a strict two-stage burden shift. Any imprecise wording in parts of the judgment did not show misapplication of the correct material influence test for victimisation by dismissal.
• On extension of time under section 123 EqA, the EAT held the ET had a wide discretion, considered relevant factors (length and reasons for delay, prejudice including forensic prejudice, and the claimant's own emphasis on the dismissal claim), and had not erred in refusing the extension.

Outcome: the EAT dismissed all grounds of appeal and upheld the ET's decision.

Appeal dismissed. The EAT found no error of law in the Employment Tribunal's decision that the respondent reasonably treated an irretrievable breakdown in the working relationship as a sufficient reason to dismiss under section 98(4) ERA, that this was a rare Polkey case permitting dispensation with prior warning and an appeal, that the ET correctly applied Turner in assessing reasonable steps, that the tribunal's handling of burden of proof and Hewage/Igen was permissible given the evidence, and that refusal to extend time under section 123 EqA was within the ET's discretion.

Appeal from the Employment Tribunal (London Central) — judgment of Employment Judge P Klimov with members Ms Plummer and Dr B Von Maydell-Koch (judgment sent 18 November 2022). Appeal heard and determined by the Employment Appeal Tribunal as [2024] EAT 38 (dismissed).