Ministry of Justice v Parry

An employer’s disciplinary decision engages article 6 only where it determines, or is sufficiently linked to a determination of, a civil right to practise a profession. A practical impediment to obtaining comparable work is insufficient; there must be a legal barrier.

Even if article 6 requires legal representation, unfair-dismissal fairness remains an overall assessment under Employment Rights Act 1996, section 98(4). A Polkey assessment concerns the percentage chance of a fair dismissal, not what was more likely than not to have occurred. In assessing summary dismissal, employee misconduct must be evaluated cumulatively. A further act during a live final written warning may amount to repudiatory breach although it would not alone justify dismissal.

The Leeds Employment Tribunal held that the respondent, a District Probate Registrar employed by the Ministry of Justice, had been unfairly and wrongfully dismissed for misconduct. It made no Polkey deduction.

The employer appealed. It challenged, among other matters, the Tribunal’s unsupported finding that the respondent had been assured she would not be dismissed, its treatment of legal representation under article 6, its Polkey approach, and its conclusion on wrongful dismissal. The central issues were whether dismissal created a legal bar to the respondent practising as a Probate Registrar, whether the overall procedure was fair, and whether the final warning formed part of the contractual assessment of repudiatory breach.

1. Appeal allowed. The Tribunal’s principal reason for finding the dismissal unfair, namely an assurance that the respondent would not be dismissed, had no evidential basis. Its further findings that the investigator and appeal officer had closed minds also included unsupported factual conclusions. The overall fairness decision could not stand.

2. Article 6 is engaged where proceedings determine, or have a sufficiently close and dispositive connection with, a civil right to practise a profession. The connection may arise through one or more sets of proceedings; two formal sets are not indispensable. However, a practical effect on future employability does not suffice. There must be a legal barrier. The evidence did not establish the nature or significance of the Registrar list, or whether removal from it legally prevented future appointment. The Tribunal therefore could not determine that article 6 applied.

3. Even if article 6 had required legal representation, its absence would not automatically make the dismissal unfair. Fairness under section 98(4) of the Employment Rights Act 1996 remains an overall assessment. Cases in which an article 6 breach does not render dismissal unfair will be rare, but may exceptionally arise, for example where an appeal rehearing supplies the missing procedural protection.

4. The Tribunal applied the wrong Polkey test. Following Polkey v A E Dayton Services Ltd [1988] ICR 142, compensation must reflect the assessed chance, across the full range from zero to 100 per cent, that a fair procedure would have led to dismissal. It is not a balance-of-probabilities, all-or-nothing inquiry. The Tribunal’s assessment was additionally flawed by its unsupported findings about the investigation and appeal.

5. For wrongful dismissal, the issue was whether the employee’s conduct, objectively and in its full context, was repudiatory. The “last straw” principle applies to an employer accepting an employee’s repudiation as well as to an employee responding to an employer’s conduct. The Tribunal erred by treating the later misconduct in isolation and excluding the live final written warning from the contractual assessment.

6. The case was remitted for a complete rehearing before a fresh Employment Tribunal.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the case for a complete rehearing before a fresh Tribunal.
• Employment Tribunal, Leeds: On 6 December 2011, held that the respondent had been unfairly and wrongfully dismissed and made no Polkey deduction.