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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Archer v. Department for Constitutional Affairs [2007] UKEAT 0365_06_1602 (16 February 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0365_06_1602.html Cite as: [2007] UKEAT 0365_06_1602, [2007] UKEAT 365_6_1602 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MS J L DRAKE
MS N SUTCLIFFE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellant | Mrs J Archer (The Appellant in Person) Mr D Archer (Representative) |
For the Respondent | Mr B Carr (of Counsel) Instructed by: Messrs Lovells Solictors Atlantic House Holborn Viaduct London EC1A 2FG |
SUMMARY
Unfair dismissal – Reason for dismissal including substantial other reason
Race discrimination - Indirect
Appellant was dismissed by the Respondent, who should have first obtained the approval of the Lord Chancellor but instead followed no procedure at all, disciplinary or otherwise. The reason was that she had been absent from her post in London for over 9 years, was now living in Wales, and delivered an invitation to return. Extensive grounds of appeal were reduced to two for full hearing: in relation to disclosure, and arguing that the Tribunal was obliged to apply s.98A(2) to hold the dismissal unfair. In particular, it was argued that the effective decision to dismiss was that of a third party (the Lord Chancellor) and thus it could not be proved by the evidence called by the Respondent what he – an independent third party – would have decided.
The appeal was rejected. The Appeal Tribunal lent further support to Kelly-Madden in its approval to "a procedure".
THE HONOURABLE MR JUSTICE LANGSTAFF
"A person who is employed under a contract of service to which subsection 5 above applies…" (this is one such case) "shall not be dismissed from his employment without the approval of the Lord Chancellor and before approving the dismissal of any such person the Lord Chancellor shall consider any representations made by him."
This procedure is echoed in the provisions of the Justices of the Peace Act 1997 schedule 4 paragraph 11(3). It also finds expression in a disciplinary procedure which we were shown as a schedule f. It might thus appear that the Respondent being a public body would have no power lawfully to determine the employment of the Claimant without first obtaining the approval of the Lord Chancellor. As a matter of fact that approval was never sought. It was therefore never given.
Disclosure
Section 98A(2)
"Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
"82. As dismissal took place after 1 October 2004 the Respondents are able to avail themselves of the provisions of section 98A(2) of the Employment Rights Act 1996 (as amended) and therefore have the opportunity to show that the Claimant would have been dismissed even if they had followed the procedure. The procedure here is the statutory procedure that the Claimant was entitled to have the Lord Chancellor consider her case."
"84. We are satisfied that without the operation of section 98(A)(2) the Claimant's dismissal would be procedurally unfair. We are equally satisfied that there would not be any substantive unfairness. If we were to make a finding of unfair dismissal it would be open to us to conclude that she had contributed substantially to her dismissal and that she would have been dismissed in any event had the procedure been followed. We accept Mr Carr's submissions in the alternative that had the Respondent gone through an internal disciplinary procedure, the outcome would have been the same. We are satisfied that Mrs Archer had not intention to return to work. We accept without reservation that she was, by her conduct, 100% responsible for the ultimate dismissal and we would find contribution to that extent."
"85. However, the provisions of section 98(A)(2) have modified the 'fairness' arrangements at section 98(4). If the Tribunal is satisfied that the outcome would have been the same had the procedure been followed, then there is no unfair dismissal for the purposes of section 98(4)(a). In his closing submissions Mr Carr set out a long list of matters which would be relevant to any disciplinary deliberations (pages 4-10). We deliberated carefully and conclude that had the provisions at schedule 4 paragraph 11 of the Justices of the Peace Act 1997 been followed, the outcome would have been the same. We have no reason for considering that the outcome would be otherwise. We heard four and a half days of evidence and a half day of submissions. We have considered a very large number of documents and have had to make findings of fact in the face of conflicting evidence. We have heard the Claimants representations which presumably are the same or similar to those that would have been put before the Lord Chancellor, and we cannot see how his conclusion would have been other than to approve the dismissal.
86. It follows that we find that the Claimant was fairly dismissed."
As to that Mr Archer, on his wife's behalf, makes a number of submissions.
"Whether that is the position is a matter of impression and judgment for the Tribunal, but in reaching that decision the Tribunal must direct itself properly. It must recognise that it must have regard to any material and reliable evidence which might assist it in fixing just compensation even if there are limits to the extent to which it can confidently predict what might have been and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.
5. An appellate court must be weary about interfering with the Tribunal's assessment that the exercise is too speculative. However it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role. That there must inevitably be uncertainties is obvious from the context."
An application for leave to appeal