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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ho v University of Manchester [2009] UKEAT 0509_08_2804 (28 April 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0509_08_2804.html Cite as: [2009] UKEAT 509_8_2804, [2009] UKEAT 0509_08_2804

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APPEARANCES

 

For the Appellant	Written submissions
For the Respondent	Written submissions


 


SUMMARY

UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal

The Employment Tribunal was wrong to hold that the statutory disciplinary procedures did not apply in a case where the employer believed that the Claimant was not an employee.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal by the Claimant from a decision of the Employment Tribunal at Manchester on 12 June 2008, the Employment Judge being Mr Creed. The Claimant has been involved in significant litigation against the Respondent in the Employment Tribunal and has made a number of complaints in relation to discrimination on the grounds of race, sexual orientation, allegations of victimisation and unfair dismissal, all of which were dismissed by the Employment Tribunal.
2. He appealed on a number of grounds all of which, save one to which we will come shortly, were disposed of under Rule 3 after an unsuccessful application under Rule 3(10) to HHJ Birtles.
3. At the hearing before Judge Birtles on 12 November 2008 the Claimant had the good fortune to be represented by Mr Nigel Giffin QC under the aegis of the ELAAS scheme. Mr Giffin found a point that was set out in amended grounds of appeal that Judge Birtles considered merited a full hearing.
4. The Claimant is unable to attend in person today because he is now resident in the Far East and has asked us to deal with the matter on the basis of written submissions. Similarly, the Respondent had asked us to deal with the matter on the basis of written submissions; we are happy to do so.
5. The point is simply this. We need not set out the facts in detail but the Claimant obtained a post as a warden in the Respondent's Halls of Residence on the basis that he was a student at the Respondent University. In fact he was not and when this became clear to the Respondent he was summarily dismissed because the Respondent considered he was not qualified for the post that he held. The Employment Tribunal accepted that the standard statutory dismissal procedures were not complied with by the Respondent.
6. However, the Employment Tribunal concluded (and we now refer to paragraph 59 of the decision) that the provisions of the standard statutory dismissal procedure, set out in Schedule 2 to the 2002 Act, did not apply so there was no automatically unfair dismissal under section 98(a)(2). The Employment Tribunal had this to say:

"59. …The Tribunal concluded that the statutory model was not designed for a situation such as that which occurred in this case.

The respondent did not consider that the claimant was a University employee at the time. Dr Hutcheson and Dr Healey acted on that basis. They arranged to meet the claimant before issuing him with the letter of termination of engagement to explain the difficulty over his appointment as a tutor but considered there was no alternative to termination under the terms and conditions. The purpose of the meeting was to explain the inevitable action. The claimant failed to attend the meeting without giving any reason. Dr Hutcheson and Dr Healy therefore set out the reason for dismissal and sent that letter to the claimant. They did not hold a further meeting with the claimant during the notice period or hold a subsequent appeal hearing as envisaged under the standard dismissal procedure. The reason for this was that the claimant was never categorised as an employee - the terms and conditions stated he did not have 'staff status'.

The Tribunal therefore considered the provisions of section 98A(2) of the Employment Rights Act 1996. Where there was a failure to follow the procedure would it have made any difference if the procedure had been followed? The Tribunal concluded having regard to the unusual facts of this case that the application of the standard disciplinary / dismissal procedure would not have made any difference in the circumstances. On the facts the claimant had ceased to be in a position to hold the position of residential tutor at the University, either from December 2004 or certainly at the latest 16 May 2005. He was well aware of the 'status' issue. The requirement for student status was set out in the agreement he signed up to in 2003. It was written on the form he signed on 12 July 2005 when seeking an extension to his tutor posting. He knew therefore, that he could not hold the post of tutor. He made enquiries of Dr Hutcheson before he completed that form which demonstrated to the Tribunal that he knew he was ineligible to hold the post of tutor from September 2005 if he was not a student.

In those circumstances the Tribunal was satisfied that the claimant could not be said to have been disadvantaged. The Tribunal was satisfied that any breach of the statutory procedure made no difference.

Further, it could be argued that by reason of the claimant's misrepresentation in July 2005 he had obtained a considerable benefit in respect of his discounted accommodation when his welfare funding was re-instated in May 2005 as it continued until the end of the notice period on 9 January 2006. Accordingly, the claim under Section 98A of the Employment Rights Act 1996 was dismissed."

7. Mr Giffin, in his amended Notice of Appeal, draws attention to the fact that there had been a breach of the applicable Schedule to procedure and the ground of appeal is:

"Accordingly, the Tribunal should have held that the Appellant's dismissal was automatically unfair. Instead, the Tribunal erred by law by holding that the dismissal was not unfair by virtue of section 98A(2) of the Act, on the footing that any breach of the statutory procedure had made no difference to the end result, i.e. that the Respondent would still have dismissed the Appellant if the procedure had been followed. That was an error of law because section 98A(2) is expressly subject to section 98A(1). Section 98A(2) has no application to a case to which section 98A(1) applies. The Employment Appeal Tribunal so held in Kelly-Madden v Manor Surgery [2007] IRLR 17."

8. The Respondent has accepted that this point appears to be correct and has not contested the appeal. HHJ Clark considered the amended Notice of Appeal and directed that the full hearing should proceed because the Employment Appeal Tribunal does not simply rubber-stamp a concession and there was also an issue as to whether the Employment Appeal Tribunal should direct a re-hearing or remit the matter to the Employment Tribunal that gave the decision in this case.
9. As has been mentioned, the Respondent has chosen not to contest the appeal. The Respondent concedes that the procedure set out in the Schedule to the Employment Act applied to the present case. The wording of the statute was quite clear and it applied to all employees. The Employment Tribunal found that the Claimant was an employee.
10. Further, the Respondent accepts that section 98(a)(2) does not apply in a case where there has been a finding of automatic unfair dismissal under section 98(a)(1). The Respondent conceded that the matter had been determined in particular by the decision of Elias J in Kelly-Madden v Manor Surgery [2007] IRLR 17, to which we have already referred, where an employer is in breach of the minimum statutory procedure he cannot argue that even if he had complied with the statutory procedure the result would have been the same. In our view the concessions made by the Respondent are correct.
11. The Employment Tribunal, in this case, fell into error and it will be necessary for the issue of remedy, for the automatically unfair dismissal to be considered by the Employment Tribunal. We, therefore, substitute for the finding of the Employment Tribunal a finding of automatically unfair dismissal. We have considered carefully, having regard to the decision of the Employment Appeal Tribunal in Sinclair Roche & Temperley (a firm) v Somatra Ltd [2003] EWCA Civ 1474, whether we should, as the Claimant wishes, remit this matter for a complete re-hearing or simply remit it to the Employment Tribunal.
12. In our opinion it is not appropriate for there to be a new re-hearing. The Employment Tribunal sat in this matter for seven days. Apart from this particular issue the judgment is clear and detailed. None of the other grounds raised by the Claimant has been considered by the Employment Appeal Tribunal to have any reasonable chance of success. They have all been dismissed. This particular point was never argued specifically before the Employment Tribunal by the Claimant. He can, of course, be forgiven for this because he is not legally qualified and this may explain the error of the Employment Tribunal.
13. There is no suggestion the Employment Tribunal has pre-judged the issue of remedy and it is quite undesirable to become involved in a further complete hearing before another Tribunal when we have every faith in the professionalism of the Tribunal that determined this matter. Accordingly, this matter will be remitted for the Employment Tribunal to consider issues of remedy in relation to the claim of automatically unfair dismissal.
14. We would finally add this. The parties may well wish to avail themselves of the services of ACAS to see, bearing in mind the issue between them is now relatively small, whether or not it will be possible to agree a compromise of the remedy proceedings.