Peter Sabourin v BT Group Plc

In an unfair-dismissal claim, an Employment Tribunal must address a distinct and material contention bearing on the fairness of the dismissal. Its assessment of the process as a whole does not dispense with considering whether the dismissing officer considered relevant performance during the period after a final written warning.

Where that issue was squarely raised and the evidence permitted a finding, the omission is an error of law. The appropriate remedy may be to quash the fairness decision and remit the issue to the same tribunal judge for further findings and a fresh fairness decision.

The claimant, a project manager employed by BT Group Plc, was dismissed for capability after a performance improvement process. Employment Judge Comfort dismissed his unfair-dismissal complaint, finding that the process and dismissal fell within the band of reasonable responses.

On appeal, the claimant challenged the final-warning arrangements, the alleged failure by the dismissing officer to consider performance after the final warning, and the consideration of alternative employment. The central issue was whether the tribunal had failed to address a distinct and material case that dismissal had been based only on the performance record which had already led to the final written warning.

1. Appeal allowed in part. Grounds 1 and 3 failed. The tribunal’s findings did not contradict one another concerning the signature on the final-warning letter. Its findings on alternative employment were also consistent with the evidence that managers considered vacancies within the relevant department while the claimant could apply for vacancies across the business.

2. Ground 2 succeeded. A tribunal need not deal expressly with every evidential detail or submission. It must, however, give sufficient reasons and address a significant and material argument relied upon by a party.

3. The claimant had advanced a separate fairness argument: that the dismissing officer did not consider performance after the final written warning, but dismissed on the same material that had led to that warning. That was distinct from the argument that the claimant had been given too little time to improve. The tribunal’s overall assessment of the length and fairness of the performance process did not resolve it.

4. If the dismissing officer had relied only on the earlier record, it was at least arguable that dismissal was unfair, notwithstanding an otherwise permissible overall assessment under section 98(4) of the Employment Rights Act 1996. The tribunal had the evidence and records to determine the point, but did not do so.

5. The decision that the dismissal was fair was quashed. The matter was remitted to the same judge, if available, to determine whether the dismissing officer considered performance after the final warning and then decide afresh whether the dismissal was fair. No new evidence should ordinarily be admitted; the parties may make further submissions. If unfairness is found, the tribunal must address remedy, including any Polkey issue.

• Employment Appeal Tribunal: allowed the appeal on ground 2, quashed the finding that dismissal was fair, and remitted the fairness issue to the same Employment Judge.
• Employment Tribunal: Employment Judge Comfort dismissed the claimant’s unfair-dismissal complaint, holding that he had been fairly dismissed for capability.