The EAT holds that a warning issued in error can render a dismissal unfair.
In this case, the EAT considered whether a dismissal under an employer's absence procedure had been rendered unfair because the dismissal stage of the process had only been reached as a result of a genuine mistake by the employer.
The EAT allowed Mr Sakharkar’s appeal against a Tribunal’s earlier decision that his dismissal had been fair, notwithstanding the employer’s error. The EAT found that Mr Sakharkar had been unfairly dismissed and remitted the case to the same Tribunal for a remedies hearing. The EAT accepted that the statutory test for unfair dismissal required the Tribunal to consider whether the employer was reasonable in it actions, not whether it was right. However, it held that if the Tribunal had given due consideration to its finding that the warning issued to Mr Sakharkar after his final review should not have been given, it would have found that the decision to dismiss him was unreasonable and that his dismissal was therefore unfair.
This case highlights the risk that, where a disciplinary sanction has been issued without reasonable grounds, the employee’s failure to appeal will not be a bar of itself to a Tribunal’s investigation in to the circumstances in which a warning was issued.
Under the employer’s absence policy, a certain level of absence triggered a “first review”. A further two occasions of absence, or one prolonged spell of absence, in the 12 months following the first review triggered a “second review”. A further two spells of absence, or one prolonged spell of absence, in the 12 months following the second review would trigger a “third review“ (which was also referred to as a “final review”). The fourth stage was dismissal.
On hearing the claim in the first instance, the Tribunal identified that the employer had made an error in calling Mr Sakharkar to a “final review”, as one of the two previous periods of absence relied upon fell outside of the applicable 12 month window. However, it nonetheless held that Mr Sakharkar had been fairly dismissed for some other substantial reason. The Tribunal held that the issuing of the third review warning had been a genuine mistake by Mr Sakhakar’s line manager and the fact that all parties had been similarly mistaken suggested that it had been a reasonable one that did not render the dismissal unfair.
On appeal, the EAT decided that the fact that an employer might have been mistaken was relevant to the question of whether the employer had acted reasonably in dismissing an employee. However, it would not be conclusive. Referring to an earlier case (involving an employer’s mistaken belief that it could require an employee to carry out certain duties under his contract), the EAT held that the key question for the Tribunal is whether, in the circumstances, including the size and administrative resources of the organisation, the employer had acted unreasonably in dismissing Mr Sakharkar.