News

12th November, 2021

Robert Lassey succeeds in the EAT on perversity appeal

Robert Lassey has successfully argued before the EAT that an Employment Tribunal reached a perverse decision in a claim under s.104 ERA 96 when it found that the Appellant had not asserted an infringement of his statutory right in the context of a grievance meeting about perceived deductions from his wages. In allowing the appeal on all grounds, the EAT further agreed with Robert's submissions that the Employment Tribunal's conclusions as to the reason for the Appellant's dismissal contained two distinct errors of law, and could not be allowed to stand.

The Claimant (Appellant) was summarily dismissed from his role as a Labourer immediately following a grievance meeting where he had raised complaints about his level of pay. The Claimant sought to bring a claim for Automatic Unfair Dismissal pursuant to s.104 ERA 96. The Respondent argued that the Claimant had resigned following this meeting. In dismissing the Claimant’s complaint the Employment Tribunal found that the Claimant had not, in fact, asserted an infringement of his statutory right to be paid at a particular level at the grievance meeting; merely that his fluctuating levels of pay were confusing, and/or difficult to understand. The Employment Tribunal relied upon various extracts from the transcript in support of its conclusion.

Having concluded that the Claimant was not dismissed for the automatically unfair reason advanced, the Employment Tribunal went on to find that the principal reason for the Claimant's dismissal related to the availability of work at the Respondent's site, and in particular to the withdrawal of a previously agreed concession to provide the Claimant with alternative work for the duration of his colleague's holiday entitlement (as an alternative to lay off), and was therefore akin to a redundancy (s.98(2)(c)), or some other substantial reason (98(1)(b)).

The Claimant appealed to the EAT, arguing that the Employment Tribunal's decision was perverse (in relation to the finding that he did not assert a statutory right), and contained errors of law regarding its conclusions as to the principal reason for dismissal in that; a) it did not explain why the Respondent had withdrawn the previously agreed concession to provide the Claimant with alternative work immediately following the grievance meeting; and b) it failed to give the parties the opportunity to make submissions on its finding as to the principal reason for the Claimant’s dismissal prior to reaching it’s decision in circumstances where neither party had sought to raise the same in evidence and/or submissions.

The EAT agreed with the Appellant on all grounds, concluding that, on all the evidence available, the finding that the appellant had not asserted infringement of a statutory right was perverse. Similarly, the EAT concluded that the findings as to the reason for dismissal contained two key errors of law in that: (a) the Employment Judge had not asked himself why the Respondent had decided to withdraw the concession, and; (b) the Employment Judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, in circumstances where there were a number of submissions the Appellant would have made if the matter had been raised (in particular relating to section 105 ERA).

The EAT substituted its finding for that of the Employment Tribunal as to the Appellant's assertion of an infringement of his statutory right at the grievance meeting. The matter was then remitted back to a differently constituted Employment Tribunal for a fresh consideration of the reason for the Appellant's dismissal.

 

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