Robert Lassey has been granted permission to appeal by the EAT at a Rule 3(10) Hearing on the question of the precise construction and applicability of sections 104(3) and 105 ERA 1996. The appeal was allowed to proceed on all grounds (five in total), including two grounds of perversity, and will now be set down for a full hearing to determine these issues.
Robert Lassey, instructed by Thompsons Solicitors, has been granted permission to appeal by the Employment Appeal Tribunal at a Rule 3(10) Hearing on the question of the precise construction and applicability of sections 104(3) and 105 Employment Rights Act 1996. The appeal was allowed to proceed on all grounds (five in total), including two grounds of perversity, and will now be set down for a full hearing to determine these issues.
The Claimant was dismissed from his role as a Labourer immediately following a grievance meeting, convened pursuant to a complaint he raised about his wages. The Respondent had sought to argue that the Claimant had resigned. No alternative pleadings were presented. In dismissing the Claimant’s complaint of Automatic Unfair Dismissal under section 104 ERA 1996, the Employment Tribunal found that the Claimant did not, in fact, assert a statutory right to be paid at a particular level at the grievance meeting, and relied upon various extracts from the transcript in support of its conclusion.
The appeal focusses on the interpretation of the words “reasonably clear” within section 104(3) ERA 1996, and whether it was for the Tribunal to make this assessment objectively on the evidence before it (the transcript of the meeting), or whether such analysis should be determined by and/or incorporate what the Respondent (those witnesses present at the grievance meeting) subjectively understood the right claimed to be.
A further interesting dimension to the appeal is the question of whether or not the construction of section 104(3) ERA 1996 merely requires the Tribunal to determine whether it was reasonably clear to the Respondent what the right said to have been infringed was, as opposed to whether it was reasonably clear that the employee was in fact asserting that this right had been infringed.
Having concluded that the principle reason for the dismissal was not the automatically unfair reason advanced by the Claimant, the Tribunal found that the Claimant had in fact been made redundant, and that his dismissal was to be interpreted as an expression that an offer of alternative work previously made to him was being withdrawn.
In these circumstances, section 105(7) ERA 1996 makes clear that the Tribunal must satisfy itself whether the Claimant was selected for dismissal, i.e. whether the offer of alternative work was withdrawn, for the automatically unfair reason advanced. This appeal further examines the extent to which a dismissal in the above circumstances can properly fall within the definition of “selected for dismissal” for the purposes of section 105(7) ERA 1996.
Lastly, this appeal examines the role of the Tribunal as an arbiter of dispute between the parties. In circumstances where neither party had sought to argue that the Claimant was dismissed by reason of redundancy, and where the Respondent’s case has been rejected in its entirety, an interesting question arises as to whether or not it is incumbent upon the Tribunal, given the centrality of the finding in issue, to notify the parties of its consideration of this fact, and allow them the opportunity to make submissions in respect of the same. In the instant case, the Tribunal did not do so prior to reaching its decision.
The case is listed for a full day hearing before the EAT, and is due to be heard in Spring – Summer 2021.