The EAT has upheld a Tribunal's decision that a capability dismissal was fair in circumstances where: (i) the appeal conclusion letter did not set out the reasons for rejecting the employee's appeal; and (ii) no member of the appeal panel gave witness evidence at the hearing of the unfair dismissal claim. In this case, the absence of reasons and witness evidence was not fatal to fairness. However, this decision hinged on the fact that the appeal was a simple re-hearing of the capability stage and it could be shown that the overall process followed by the employer was fair (Elmore v The Governors of Darland High School and another, EAT).
In order to effect a fair dismissal the employer must be able to identify a fair reason and demonstrate that they acted reasonably in dismissing the employee for that reason. This second limb requires the employer to have followed a fair procedure prior to the dismissal, which encompasses a right to appeal any disciplinary decision. However, defects in the process will not necessarily mean a dismissal is procedurally unfair.
The Claimant was a poorly performing maths teacher. The employing school instigated a capability procedure and provided her with support and monitoring. Despite this, her performance did not sufficiently improve and she was dismissed on capability grounds. The Claimant appealed. The appeal panel rejected the appeal and upheld the dismissal, but failed to give reasons for doing so in the appeal conclusion letter. The Claimant went on to bring a claim for unfair dismissal in the Employment Tribunal. At the Tribunal hearing, the employer failed to call any member of its appeal panel to give evidence. The Tribunal dismissed the claim, finding the dismissal to be both substantively and procedurally fair. This was the case notwithstanding the failure of the appeal panel to give express reasons for rejecting the appeal. The Tribunal's view was that the Tribunal's reasons were implicit in the letter. The Claimant appealed to the EAT, arguing that the Employment Judge was wrong to decide the dismissal was procedurally fair given the absence of:
- reasons explaining the decision to reject the appeal in the appeal conclusion letter; and
- evidence before the Tribunal from any member of the appeal panel explaining their decision to reject the appeal.
The EAT dismissed the appeal. The Tribunal had been entitled to decide that the dismissal was substantively and procedurally fair.
The EAT considered the Tribunal's approach to the handling of the capability procedure. This was important context when considering the fairness of the appeal stage of the process. The EAT found that the Tribunal had heard evidence from the school's Head of Maths on the Claimant's poor performance and failure to meet the school's expected standards. The Tribunal had also heard evidence from a member of the capability panel as to why they had reached the decision to dismiss. The Tribunal had been satisfied that the capability panel had approached the matter in an objective and balanced way.
Looking at the appeal stage of the process, it was important to note that the appeal was a re-hearing of the arguments that had been put before the capability panel and had not involved any new evidence or arguments. Although the Tribunal did not hear evidence from the appeal panel at the hearing, they had considered minutes from the appeal hearing which had demonstrated that the panel had asked appropriate questions and approached the issues thoroughly. There was no evidence that suggested the appeal panel had dealt with the matter improperly.
On the appeal conclusion letter itself, the EAT recognised that it would have been better to include the reasons for the decision in the letter (particularly as it was a career-ending letter for a long serving employee). However, it was open to the Tribunal to infer that the appeal panel had upheld the decision to dismiss for the same reasons as the capability panel. Therefore, in this case, the failure to set out the reasons in the letter was not fatal to fairness. Nor did it mean that a member of the appeal panel was required to give evidence in order to determine the question of fairness.
Whilst it is standard practice for appeal letters to set out the reasons for dismissing an appeal, this case demonstrates that a failure to do so will not always mean the dismissal unfair. Whilst this is helpful, employers should not take this as carte blanche to short circuit an appeal process and provide abbreviated appeal letters. Furthermore, employers should usually expect to call at least one member of an appeal panel to give evidence at a relevant Tribunal hearing.
In this case, the overall process followed by the employer was reasonable and stood up to scrutiny by the Tribunal. The absence of reasons in the appeal letter was not ideal, but the employer was ultimately able to evidence the fairness of the capability procedure and the appeal panel's approach. The employer was helped by the fact that the appeal was a re-hearing of the arguments and evidence before the capability panel.
Particular care should be taken in cases where an employee introduces new evidence or makes new arguments at the appeal stage. In such circumstances the appeal panel should provide full reasons for rejecting the appeal and, if appropriate, provide witness evidence to the Tribunal.