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Royal Mail Group Ltd v. K Kelly


Employment Appeal Tribunal

The Employment Rights Act 1996 s.98A(2) only applied to a procedural defect in a dismissal by itself. Accordingly, where a tribunal found that a procedure had been both procedurally and substantively unfair, the employer's complaint that it had not addressed s.98A(2) fell away.
The appellant employer (R) appealed against a decision of an employment tribunal that it had unfairly dismissed the respondent employee (K).

K had been accused of behaviour constituting gross misconduct. Managers at R sent him letters detailing the allegations and fact-finding interviews were held at which K was represented. K was summarily dismissed and appealed to R's national appeals panel. The panel interviewed several witnesses without K being present. Following its investigation, the panel decided that K should be dismissed without notice. The tribunal found that step 2 of the statutory dismissal and disciplinary procedures had not been satisfied, meaning that the dismissal had automatically been unfair. It further found that the appeals panel process had been manifestly unfair, rendering the dismissal procedurally and substantively unfair. The tribunal's decision was promulgated 18 months after the hearing. It did not mention the considerable evidence that had been given by a witness (B) who had appeared on R's behalf.

R argued that (1) the delay was such as to strike down the judgment, in that in promulgating its decision the tribunal had forgotten about the evidence of R's principal witness, B; (2) the tribunal should not have considered breach of the statutory procedures as that had not been raised by either party, and should not have found a breach of step 2; (3) the step 2 finding had precluded a finding in its favour on the Employment Rights Act 1996 s.98A(2).

HELD: (1) The delay was inexcusable; there was no reason why parties should wait so long. The real question was whether the delay constituted grounds for finding an error of law. It was an error not to have mentioned R's primary vehicle for the presentation of its case against unfair dismissal, namely B's evidence, but it was not such an error as to cause the decision to be set aside. The tribunal's central finding had not been dependent on what B had said. It was regrettable that there was no mention of B in the decision, but it was not an error of law (see paras 32-34 of judgment). (2) The tribunal's failure to ensure that the parties understood that it was to consider the statutory procedures was a material irregularity. Moreover, it had been wrong to find a breach of step 2. From the material advanced by R, it was clear that K had had an extensive insight into what was being put before him. That did not fail to meet the requirements of step 2, which were elementary. There had been extensive examination of the material by K and his representative; that also satisfied step 2. The finding of automatic unfair dismissal was therefore set aside (paras 36-37). (3) Section 98A(2) related only to procedural fairness. Accordingly, there had to be a procedural error. There was a useful distinction to be drawn between procedural and substantive errors. In a case where it could not be said what the outcome would have been had the employer got it right the issue arose and it became substantively unfair; it was not a technical mistake by the employer but something that went to the heart of the decision-making. When a tribunal said that a procedure was manifestly unfair it was to be given very substantial credit for its expertise in that decision. There had been no error of law in the tribunal's approach: it was within the wide range of decision-making open to it to criticise the appeals panel as falling below the standards of a reasonable employer. It was unusual for the investigation and the decision-making to be done by the same body. If the panel's process had been an appeal, it was an extraordinary process, and if it had been a rehearing then it had not taken place in front of K. Accordingly, there had been no error in the tribunal depicting that as substantively unfair. R's complaint that there had been no finding in relation to s.98A(2) therefore fell away, because s.98A(2) applied only to a defect in procedure by itself (paras 37-40).

Appeal allowed in part.


LTL 15/9/2011

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