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Employment: automatically unfair
dismissal
AUTOMATICALLY UNFAIR DISMISSAL : COMPENSATORY
AWARDS : DISMISSAL AND DISCIPLINARY PROCEDURES : POLKEY REDUCTIONS : UNFAIR
DISMISSAL : STATUTORY PROCEDURE NOT COMPLETED : FAILURE TO DISCLOSE STATEMENTS
BEFORE MEETING : REDUCTION IN RESPECT OF CONTRIBUTION : Sch.2 Pt 1 EMPLOYMENT
ACT 2002 : s.98(4) EMPLOYMENT RIGHTS ACT 1996 : Pt X s.98A EMPLOYMENT RIGHTS ACT
1996 : s.123(6) EMPLOYMENT RIGHTS ACT 1996
An employment tribunal had been entitled to find that there had
been a breach of step 2 of the dismissal and disciplinary procedure set out in
the Employment Act 2002 Sch.2 Pt 1 when the two written accounts of complaints
against the claimant were not shown to her before the step 2 meeting. However,
it had erred when it failed to give reasons in response to a submission that the
claimant had contributed to her dismissal.
The appellant employer (E) appealed against a decision of an
employment tribunal that it had unfairly dismissed the respondent (S). S worked
as a plain-clothes store detective. She was the subject of a complaint made by a
customer's daughter, and a report was made by the manager of the relevant store.
E had material sufficient to satisfy step 1 of the three-stage dismissal and
disciplinary procedure set out in the Employment Act 2002 Sch.2 Pt 1 and
accordingly it called a meeting. The employment tribunal found that the
complaint written by the customer's daughter and the store manager's report were
not given to S in advance of the meeting. Nevertheless, S gave a detailed
written response indicating that she knew the basis upon which she was to face
disciplinary proceedings. The employment tribunal found that the decision to
dismiss was reasonable within the Employment Rights Act 1996 s.98(4) since E had
reasonably concluded during the disciplinary process that S had failed to apply
the industry standard procedure where she considered that there had been
shoplifting and she had not accepted that what she had done was wrong. However,
the employment tribunal found that the failure to provide the two statements
made the dismissal unfair under s.98 and s.98A of the 1996 Act because step 2
was not properly completed. Dealing with remedy, the employment tribunal
concluded that S would have been dismissed in any event, albeit at a later date,
if the proper process had been complied with, and that she was entitled to a
basic award and a compensatory award limited to three weeks' pay, and that it
was "not appropriate to make any further deduction for contribution". E
submitted that (1) S knew enough for her to understand the case she had to meet
and the employment tribunal erred in finding that step 2 was not complied with;
(2) the employment tribunal failed to give reasons as to why it did not order
contribution and it ought to have made a finding of 100 per cent contribution
since S's conduct alone was the reason for dismissal.
HELD: (1) Although S had known enough to be able to write an
account, once it became clear that there were two statements against her she
ought to have had the opportunity to prepare her account in the light of them.
The instant case was distinguishable from Ingram v Bristol Street Parts
Unreported April 23, 2007 EAT, where there was a failure to provide a whole
sequence of invoices; in the instant case the only relevant materials were the
statements of the customer's daughter and the manager, Ingram distinguished. The
employment tribunal was entitled, using its experience, to decide that that was
a failing and, applying the law on which it was correctly directed, to decide
that it was a breach of step 2 of the procedure (see para.21 of judgment). (2)
It was an error by the employment tribunal to provide no further reasons on the
issue of contribution. It should have said whether it accepted the case made by
E that S had contributed to or caused her own dismissal. It was possible even in
a procedural defect case for there to be contribution, Ingram applied. Just
because the employment tribunal had limited the loss to three weeks did not mean
that it was just and equitable to refuse to order contribution. Making a Polkey
reduction and making a reduction for contribution were separate processes and
s.123(6) of the 1996 Act inserted a mandatory consideration of contribution into
the wide discretion to make a compensatory award. The issue of contribution was
remitted to the same employment tribunal for reconsideration.
“Lawtel” 12.9.2011
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