John-Charles v NHS Business Services Authority

The decision affirms that an employee must be given an opportunity to address any new, decisive factor before dismissal. A disciplinary warning issued after misconduct can be relevant to sanction because it records prior misconduct and may inform an employer's view of risk. The fairness inquiry focuses on the actual decision-maker's knowledge and whether they carried out a reasonable investigation. Errors about the likely success of an outstanding appeal go to remedy, not to liability.

The claimant was dismissed for conduct arising on 24 October 2012. A separate first written warning was issued in January 2013 and was under appeal when the dismissal decision was taken in May 2013. The Employment Tribunal found the dismissal fair. The claimant appealed, arguing the ET failed to consider (a) that the warning post-dated the conduct, (b) that the warning was the subject of an outstanding appeal, and (c) that he was not given an opportunity to make representations about the new significance of the warning. The EAT allowed the appeal on natural justice grounds and substituted a finding of unfair dismissal, remitting remedy to the ET.

1. Outcome: Appeal allowed on procedural fairness grounds; finding of unfair dismissal substituted and matter remitted to the ET for remedy (see paras [40]-[42]).
2. Decision-maker's knowledge: Fairness under s.98 ERA depends on what the actual decision-maker knew and whether they had carried out a reasonable investigation. The inquiry centres on their state of mind, not on imputing wider institutional knowledge (following the approach summarised from Orr v Milton Keynes Council [2011] IRLR 317 and the Burchell principles) (see paras [27], [28], [33]).
3. Timing of warnings: A warning given after the conduct relied on may nonetheless be relevant to sanction because it records misconduct and informs the employer's appraisal of the employee (applying the reasoning in Sweeney) (see paras [32], [35]).
4. Outstanding appeal to earlier warning: If the employer is aware a warning is under challenge, that fact can be relevant to fairness. But the crucial question is what the decision-maker reasonably believed at the time. If they reasonably believed the appeal was not being pursued, that belief will not automatically render the dismissal unfair (see paras [31], [36]).
5. Natural justice/new decisive factor: Where a new factor emerges that becomes decisive to sanction, the employee must be given an opportunity to make representations about that new factor. Failure to do so can render the dismissal unfair even where there was a right of appeal available later (see paras [38]-[39]). On the ET's failure to engage with whether denial of that opportunity made the dismissal unfair, the EAT substituted a finding of unfair dismissal (paras [38], [41]).
6. Remedy: The case is remitted to the same ET to determine remedy in accordance with this judgment and the guidance in Jafri v Lincoln College [2014] EWCA Civ 449 (para [42]).

• Employment Tribunal (London Central): Reserved Judgment dismissing unfair dismissal claim (Employment Judge Grewal) (sent 20 October 2014) (see paras [1]-[2], [3]-[14]).
• Employment Appeal Tribunal: Appeal allowed; finding of unfair dismissal substituted; remitted to the same ET for remedy (HHJ Eady QC, 12 October 2015) (this judgment).