In RBS v Bevan, the EAT considered an appeal against an employment tribunal’s decision that it had not been reasonably practicable for the claimant to present his claim within the first 3 months from dismissal in circumstances where he did not hear of the failure of his internal appeal against dismissal until 5 hours before the expiry of the time limit.

The Employment Act 2002 (Dispute Resolution Regulations) 2004 provide an extension of time by 3 months in circumstances where at the time when the initial 3 month period expires the claimant reasonably believes that an internal appeal is still in progress. Mr Bevan did not get the extension, because by the time the initial 3 months expired he was aware that his internal appeal had failed – even though only just. The question was therefore whether it had been reasonably practicable for him to present his claim in time. It was argued that it was – because there was nothing to prevent him from presenting his claim before he knew the result of the internal appeal, although he might prefer not to.

The EAT held that the employment tribunal had been entitled to find that it was not reasonably practicable for Mr Bevan to present his claim in time. Both the employment tribunal and the EAT may have been influenced by a suspicion (which emerges quite clearly without being stated) that the employer may have deliberately timed its announcement of the outcome of the appeal for the last day of the original period in the hope that it might induce Mr Bevan to miss the deadline.

Although the outcome is clearly just, it is difficult to reconcile it with the statutory provisions: rather, it appears to be an expression of the view that it ought to be permissible to extend time for an unfair dismissal claim on the grounds that it is ‘just and equitable’ in all the circumstances to do so. This is the basis on which time can be extended for discrimination claims; it is difficult to see any good reason for the tougher requirement in unfair dismissal cases to show that it was not ‘reasonably practicable’ to present the claim in time.

Gross misconduct is misconduct so serious that so far as the contract of employment is concerned it entitles the employer to dismiss without notice. This idea cuts both ways: if the employer is guilty of a fundamental breach of contract, the employee is entitled to walk out without notice. When the employee resigns in these circumstances it is called constructive dismissal.

That is the contractual situation. Protection from unfair dismissal means that even where gross misconduct is proved, the employer still has to consider the gravity of the offence, look at alternatives to dismissal, and give proper weight to any mitigating factors. Employers often overlook this: they have a tendency to assume that once they are satisfied that there has been gross misconduct, dismissal follows inevitably. This is a mistake, and one that claimants can exploit.

Part of the reason for the mistake is that people making harsh decisions tend to prefer to disclaim responsibility for them. It is easier to say ‘I have no alternative but to dismiss you’ than ‘Although I could have give you a formal warning, I have decided to dismiss you.’

This mistake means that there is a particular line of cross examination that often works well. It is worth considering in any case where the employer’s reason for dismissal is gross misconduct; it also provides an example of how witnesses can be invited along an easy path until they are where you want them. (See also ‘Preparing the ground.’)

Suppose the dismissal letter says something like ‘In the circumstances I have no alternative but to dismiss you.’ The cross-examination goes something like this:

Q: Please turn to page 87. This is your letter dismissing Mrs Smith. Does it explain your reasoning accurately?

A: Yes [this is obviously the 'right' answer - few managers will want to say that their own letter was misleading]

Q: So there was nothing that you regarded as important to your decision that you omitted to mention here?

A: No. [This seems to follow from the previous answer, and disagreeing is unattractive because it involves volunteering that there were important omissions from the letter.]

Q: And when you said ‘I had no alternative’ you meant it?

A: Yes. [Again - a question of the form 'you meant what you said didn't you?' will almost always elicit the answer yes.]

Q: Once you were satisfied that Mrs Smith was guilty of gross misconduct, you really had no option but to dismiss her?

A: That’s right. [A wily personnel officer who has given evidence on many occasions may start to smell a rat - but it is surprising how many will continue to follow trustingly at this point.]

Q: So there really were no other options that you could have considered?

A: No.

Q: And the question of her previous record was not relevant?

A: No.

The last two questions are the crunch. The dismissing officer should have considered alternatives to dismissal, and mitigating factors such as the claimant’s previous record (if good), before deciding to dismiss. A failure to do so points to unfairness. This series of questions has produced some damaging admissions without ever facing the witness with an inconsistency or calling her a liar. If you have done it gently enough, she may not even realise she has given anything away.

Section 98A(1) of the Employment Act 1996 means that, where one of the statutory dismissal and disciplinary procedures applies to a dismissal, and the employer fails to follow it, the dismissal will be unfair.¹

S98A, however, only applies to the statutory procedures laid out in the Employment Act 2002. A common confusion is to think that it applies to any statutory rule relating to a dismissal procedure. For example, the right to be accompanied to a disciplinary proceeding is a statutory right, but it is not part of the Employment Act 2002 procedure. Therefore, a breach of that right will not make a dismissal automatically unfair.

1. Provided that the employee is eligible to claim unfair dismissal to begin with

Where a case involves issues of unfair dismissal and redundancy payment confusion often develops around whether the claimant should be seeking a basic award or a redundancy payment. Since the awards are of equal value this is rarely a vital issue, but it is worth getting right if possible.

The following scenarios may assist, all assume that the claimant has not received any payment relating to dismissal.

• If the client has been made redundant and accepts the redundancy was fair, he should claim a redundancy payment.
• If the client has been dismissed, but does not accept the reason was redundancy, he should claim the basic award (but probably a redundancy payment in the alternative, in case the tribunal finds the dismissal was a fair redundancy.)
• If the client has been made redundant, but believes the dismissal was unfair, he can claim both the redundancy payment and the basic award. However, the rule against double recovery means he will only recover the value of a single award.¹
1. Double recovery is the rule that you can only be compensated once for the same loss, even if you are entitled to bring a claim under a number different jurisdictions.

In Aptuit v Kennedy the EAT has provided guidance on two important issues relating to the Statutory Dismissal and Disciplinary Procedure. Firstly, the process by which the employee must be informed of her right to appeal, and, secondly, how the uplift to the award should be calculated.

Right to appeal

The EAT concluded that there was no need for an employee to be informed of her right to appeal in writing, para. 35 & 44. A verbal statement that an appeal was available was sufficient. Further, neither a oral or written statement needed to be in any particular form. All that was necessary was that the right to appeal was communicated in some way.

Lady Justice Smith did not deal with precisely when the communication of the right to appeal must be made. It seems arguable that the requirement could be satisfied if the right to appeal is laid out in a generally available disciplinary procedure; particularly if the employee’s attention is drawn to the procedure at some stage of the process. This argument remains unresolved.

Uplift

Where the employer has failed to follow the disciplinary procedure the claimant’s award will be increased by 10%, save in exceptional circumstances. The tribunal has a discretion to increase this uplift up to 50%. There has been little guidance from the EAT as to how this is decision is to be made. Aptuit sheds some light on it, but stops well short of providing definitive guidance.

What Aptuit does make clear is that the only relevant factors when making this decision are those relating to the failure to follow the procedure, para.47. The general merits or circumstances of the case are not relevant. Claimants arguing for an uplift, therefore, should focus their submissions on the extent of the failure and the reasons for the failure (preferably showing that there was no good reason for it).

Aptuit v Kennedy