The Employment Appeals Tribunal has held that where a dismissal letter cited ‘misconduct’ as the reason for dismissal but a subsequent response by the employer to a claim for unfair dismissal cited ‘capability’ as the reason, an earlier tribunal was not prevented from dealing with the claim on the basis of misconduct. This was because the decision to dismiss had at all times been based upon the same set of facts and the change of label, therefore, caused no prejudice to the employee.

What does this mean?

Incorrectly citing the wrong ground for a dismissal will not necessarily be fatal to a case as long as the facts upon which the dismissal is based are clear and the claimant is not disadvantaged.

What should employers do?

It is far better to get the labels right in the first place as this will be a better deployment of employers’ resources. Employers should therefore take specific legal advice if they are unclear about the appropriate use of legal terminology.