Automatically unfair dismissal – Completion – Delay - Disability discrimination - Completion of statutory procedure
M Selvarajan v S Wilmot & Ors: CA (Civ Div) (Lords Justice Mummery, Wilson, Stanley Burnton): 23 July 2008
The appellant employer (X) appealed against a decision that the respondent employees (W, S and P) had been automatically unfairly dismissed. W, S and P appealed against the rejection of their claims for ordinary unfair dismissal and wrongful dismissal, and S appealed against the rejection of her claim for disability discrimination.
X had dismissed W, S and P for misconduct after carrying out the procedural steps stipulated in schedule 2 part 1 of the Employment Act 2002. W, S and P’s case was that the statutory procedure had not been completed because there had been unreasonable delay on X’s part in relation to the appeal at step 3 of the standard procedure. The tribunal held that the procedure had been completed and consequently there was no failure to comply with the statutory requirements. On appeal, the Employment Appeal Tribunal (EAT) held, in accordance with previous EAT decisions, that a failure to comply with the requirements of the statutory procedure precluded completion of that procedure.
X argued that the intention of Parliament, as expressed in section 98A of the Employment Rights Act 1996, was to distinguish between the completion of the steps in the procedure and non-compliance with the requirements of the procedure. X submitted that, in the instant case, the three steps in the standard procedure had been completed: there was nothing more that needed to be done to complete it. X further argued that there was no justification for adding to section 98A(1)(b) of the act, as W, S and P would, the words ‘in accordance with the requirements of schedule 2 to the 2002 act’.
Held: (1) (Per Lord Justice Mummery) The tribunal had not erred in law in its construction of section 98A. The section distinguished between three things: the applicable procedure, the completion of the procedure, and compliance with the requirements of the procedure. The question whether the procedure applied had to be addressed before the question of whether the procedure had been completed. Similarly, the question of whether the procedure had been completed had to be addressed before the question of non-compliance with the general requirements of the procedure. If the procedure had been completed, then the question of whether there had been non-compliance with the general requirements of the procedure never arose. Completion of the procedure was not made expressly or impliedly conditional on, or subject to, compliance with the general requirements. It was possible for all the prescribed steps in the procedure to be completed even if there had been non-compliance with other procedural requirements, such as the timetabling standards, Khan v Home Office (unreported) 14 November 2006 EAT, Patel v Leicester City Council (unreported) 20 December 2006 EAT, Sovereign Business Integration Plc v Trybus (unreported) 15 June 2007 EAT and Yorkshire Housing Ltd v Swanson (2008) IRLR 607 EAT overruled.
(Per Lord Justice Wilson) Were every failure by the employer to comply with a requirement of the procedure to mean that the procedure had not been completed, the obligation to establish the fact at section 98A(1)(c) as well as the fact at section 98A(1)(b) would make no sense. The terms of the requirement at section 98A(1)(c) showed that non-completion was one thing and failure to comply was another, and the enquiry which it mandated in each case was whether the former was wholly or mainly attributable to the latter. Attribution was not automatic.
(2) The tribunal had been correct to reject W, S and P’s claims for ordinary unfair dismissal and wrongful dismissal. The tribunal had not erred in law in its conclusions on S’s disability discrimination claim.
Appeals allowed in part.
Joanne Woodward (instructed by Davies Arnold Cooper) for the appellant; Peter Oldham (instructed by UNISON Legal Services) for the respondents.
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