Case update (2): Unfair dismissal – Lack of appeal evidence not fatal

Summary: Can a capability dismissal be fair in circumstances where: (1) the appeal decision did not give reasons for rejecting the employee’s appeal; and (2) no member of the appeal panel gave witness evidence at the unfair dismissal Tribunal hearing?

Yes, in circumstances where the appeal is a simple re-hearing says the EAT in Elmore v The Governors of Darland High School and another available here.

Facts: The employee was a poorly performing maths teacher. The employer managed the employee’s poor performance under the capability procedure and provided her with support and monitoring.  However, the employee’s performance did not sufficiently improve and she was dismissed on capability grounds.

The employee 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 employee brought a Tribunal claim for unfair dismissal. 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 decision even taking into consideration 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 employee appealed to the EAT, arguing that the Tribunal was wrong to decide the dismissal was procedurally fair given that there were 1) no reasons explaining the decision to reject the appeal in the appeal conclusion letter; and 2) no evidence before the Tribunal from any member of the appeal panel explaining their decision to reject the appeal.

The EAT dismissed the employee’s appeal.  The EAT held that it is not a legal requirement for an appeal officer to give evidence at Tribunal for it to be a fair dismissal. In this case, “no fresh evidence or alternative arguments” were made at appeal that had not been put before the original panel. Importantly, minutes of the appeal hearing were also provided to the employee and the Tribunal. These “indicated discussion and exploration of relevant issues,” and that the appeal hearing was not “a mere formality.” The EAT also upheld the conclusion of the Tribunal that although no reasons were given in the appeal letter, it was implicit that it relied on the decision and reasoning of the original panel.

Implications:   This is a helpful decision for employers as it shows that a failure to give reasons for appeal outcomes either by letter or in witness evidence at Tribunal will not always be fatal to an employer’s case.  However, this case is fact specific and the appeal was only a re-hearing with no new evidence to consider.  Therefore it   remains good practice to give reasons for appeal outcomes and to call appeal officers as witnesses at Tribunal, where appropriate.